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<s>[INST] Summarize the judgementCivil Appeal No. 573 of 1988 From the Judgment and order dated 13.2.1987 of the Bombay High Court in W.P. No. 613 of 1984.
33 A.M. Khanwilkar and A.S. Bhasme for the Appellant.
B.N. Singhvi and A.K. Gupta for the Respondent.
The Judgment of the Court was delivered by SINGH, J.
Special leave granted.
This appeal raises an important question of law whether a Government servant after his retirement on attaining the age of superannuation is liable to be dealt with departmentally for any misconduct, negligence or financial irregularities committed by him during the period of his service.
Necessary facts giving rise to this appeal are that M.H. Mazumdar, the Respondent was in the service of the State of Maharashtra as Supply Inspector and he retired from service on attaining the age of superannuation on September 1, 1977.
After his retirement the respondent was served with a charge sheet on October 16, 1978 containing allegations of misconduct and negligence against him for the period he was in service.
Enquiry into those charges was held and the respondent was afforded full opportunity to defend himself.
On the conclusion of the enquiry the State Government issued orders on December 4, 1982 reducing the amount of pension payable to the respondent by 50 per cent permanently under Rule 188 of the Bombay Civil Services Rules.
The respondent challenged the validity of the Government 's order by means of a writ petition under Article 226 of the Constitution before the High Court of Bombay.
A Division Bench of that Court allowed the writ petition and quashed the State Government 's order dated December 4, 1982 on the ground that the State Government had no authority in law to take any disciplinary proceedings against the respondent as he had already retired from service.
Placing reliance on a decision of this Court in B.J. Shelet vs State of Gujarat & Ors. ; the High Court held that the initiation of disciplinary enquiry and the order of punishment was unauthorised and illegal.
The State of Maharashtra has preferred this appeal against the judgment of the High Court.
There is no dispute that the respondent had retired from service on attaining the age of superannuation on September 1, 1977 and charges were served on him on October 16, 1978 after about a year of his retirement.
Undisputably the proceedings against the respondent were initiated after the respondent ceased to be in service of the State 34 Government.
The proceedings culminated into an order of the State Government reducing the respondent 's pension by 50 per cent.
The question is whether the State Government was competent to take action against the respondent by reducing his pension.
Conditions for grant of pension to a Government servant of the State of Maharashtra are regulated by the Bombay Civil Services Rules (hereinafter referred to as the Rules).
Rule 184 provides for grant of pension admissible under the rules to Government servant who is borne on its establishment.
Rules 188 and 189 relevant for our purpose are as under: "188.
Government may make such reduction as it may think fit in the amount of the pension of a Government servant whose service has not been thoroughly satisfactory." "189.
Good conduct is an implied condition of every grant of pension.
Government may withhold or withdraw a pension or any part of it if the pensioner be convicted of serious crime or be found to have been guilty of grave misconduct either during or after the completion of his service, provided that before any order to this effect is issued, the procedure referred to in Note I to Rule 33 of Bombay Civil Services Conduct, Discipline and Appeal Rules shall be followed.
" The aforesaid two Rules empower Government to reduce or withdraw a pension.
Rule 189 contemplates withholding or withdrawing of a pension or any part of it if the pensioner is found guilty of grave misconduct while he was in service or after the completion of his service.
Grant of pension and its continuance to a Government servant depend upon the good conduct of the Government servant.
Rendering satisfactory service maintaining good conduct is a necessary condition for the grant and continuance of pension.
Rule 189 expressly confers power on the Government to withhold or withdraw any part of the pension payable to a Government servant for misconduct which he may have committed while in service.
This Rule further provides that before any order reducing or withdrawing any part of the pension is made by the competent authority the pensioner must be given opportunity of defence in accordance to the procedure specified in Note I to Rule 33 of the Bombay Civil Services Conduct, Discipline and Appeal Rules.
The State Government 's power to reduce or withhold pension by taking proceedings against a Government servant even after his retirement is expressly preserved by the aforesaid Rules.
35 The validity of the Rules was not challenged either before the High Court or before this Court.
In this view, the Government has power to reduce the amount of pension payable to the respondent.
In M. Narasimhachar vs The State of Mysore, [1960] 1 SCR 981 and State of Uttar Pradesh vs Brahm Datt Sharma & Anr., [1987] 2 SCC 179 similar Rules authorising the Government to withhold or reduce the pension granted to the Government servant were interpreted and this Court held that merely because a Government servant retired from service on attaining the age of superannuation he could not escape the liability for misconduct and negligence or financial irregularities which he may have committed during the period of his service and the Government was entitled to withhold or reduce the pension granted to a Government servant.
The High Court in our view committed serious error in holding that the State Government had no authority to initiate any proceedings against the respondent.
In B. J. Shelat vs State of Gujarat & Ors.
disciplinary proceedings had been initiated against the Government Servant for purpose of awarding punishment to him after he had retired from service.
The ratio of that decision is not applicable to the instant case as in the present case the purpose of the enquiry was not to inflict any punishment; instead the proceedings were initiated for determining the respondent 's pension.
The proceedings were taken in accordance with Rules 188 and 189 of the Rules.
It appears that the attention of the High Court was not drawn to these Rules.
The State Government had power to reduce the pension payable to respondent but having regard to the facts and circumstances, of the case we are of the opinion that the reduction of pension by 50 per cent was disproportionate to the charges proved against the respondent.
Two charges were framed against the respondent which are as under: "Charge No. 1.
He has made a farce of an enquiry, collected 6 permits from the Kolhapur Central Co operative Consumers Stores including the permit No. 007314 issued to Shri K.P. Khatavane with malafide intention after passing a receipt thereof to the Godown Keeper, of the said stores on 12.6.1974 and thereby tried to shield Shri K.P. Khatavane and his sons Baban Khatavane from criminal prosecution.
Charge No. 2.
He has deliberately and intentionally denied to have made 36 any enquiry regarding unauthorisedly lifting of 10 bags of Sugar on bogus or forged permit by Shri Baban Khatavane even though he was deputed for such enquiry by Shri A.R. Mane District Supply officer, Kolhapur and he had actually recorded the statement of Shri S.L. More, Godown Keeper of the said stores and Shri Hari Santu Pande, Cart driver and also collected above mentioned 6 permits from Shri More after passing a receipt thereof.
By denying the above fact he has helped Shri A.R. Mane, District Supply officer, Kolhapur for suppressing the case.
His failure in this regard leads to belief that he has conspired with Shri K.P. Khatavane and his son Shri Baban Khatavane with some ulterior motive and abatted them in the disposal of sugar in black market.
" On conclusion of the enquiry charge No. 1 was found to have been established while charge No. 2 was partially proved.
In his report to the State Government the Collector of Kolhapur held that the respondent 's action was helpful to Shri Khatavane to sell the sugar in the black market, and it amounted to a serious default on his part as a Government servant.
He recommended that since the respondent had already retired from service a lenient view should be taken and reduction in pension to the extent of Re. 1 per month be made The State Government accepted the findings and passed the impugned order reducing the pension by 50 per cent In our view the reduction of pension 50 per cent was too harsh and disproportionate to the misconduct proved against the respondent.
The State Government should have taken into consideration the fact that the respondent had retired from service and the reduction of pension by 50 per cent would seriously affect his living.
Accordingly, we allow the appeal partly, and set aside the order of the High Court dated February 13, 1987, and the State Government 's order dated December 4, 1982 and direct the State Government to reconsider the question of reduction of respondent 's pension.
There will be no order regarding costs.
N.P.V. Appeal allowed.
[/INST]% The respondent retired from State Government service on September 1, 1987, on attaining the age of superannuation.
About a year after his retirement, the respondent was served with a chargesheet containing allegations of misconduct and negligence for the period he was in service.
Enquiry into the charges was held and respondent was afforded full opportunity to defend himself.
On the conclusion of the enquiry a report was submitted by the Collector, holding that one of the two charges was established while the other charge was partly proved, and that the respondent 's action was helpful to one of the parties which amounted to a serious default on his part as a Government servant, and it was recommended that since the respondent has already retired from service, a lenient view should be taken and reduction in pension to the extent of Re. 1 per month be made.
The State Government accepted the findings and issued orders reducing the amount of pension payable to the respondent by 50% permanently under Rule 188 of the Bombay Civil Services Rules.
The respondent challenged the validity of the Government order before the High Court.
A Division Bench of the High Court allowed the writ petition and quashed State Government 's order on the ground that the State Government had no authority in law to take any disciplinary proceedings against respondent as he had already retired from service and the initiation of disciplinary enquiry and the order of punishment were unauthorised and illegal.
Allowing the appeal by the State.
partly, 32 ^ HELD: 1.1 Rule 188 of the Bombay Civil Services Rules empowers the Government to reduce the amount of pension of a Government servant whose service has not been thoroughly satisfactory.
Rule 189 expressly confers power on the Government to withhold or withdraw any part of the pension payable to Government servant for misconduct which he may have committed while in service, after giving opportunity of defence in accordance with the procedure specified in Note I of Rule 33 of the Bombay Civil Services Conduct Discipline and Appeal Rules.
The State Government 's power to reduce or withhold pension by taking proceedings against Government servant even after retirement is thus expressly preserved by the aforesaid rules.
[34C, F H] 1.2 The High Court committed a serious error in holding that the State Government had no authority to initiate any proceedings against the respondent.
The purpose of the enquiry was not to inflict any punishment, and the proceedings were initiated for determining respondent 's pension.
The proceedings were taken in accordance with the Rules 188 and 189 of the Rules.
[35C E] 1.3 The Government had power to reduce the pension payable to the respondent but having regard to the facts and circumstances of the case, the reduction of pension by 50% was too harsh and disproportion ate to the misconduct proved against the respondent.
The State Government should have taken into consideration the fact that the respondent had retired from service and the reduction of pension by 50% would seriously affect his living.
The order of the High Court and the State Government 's order reducing pension by 50% are set aside and the State Government is directed to reconsider the question of reduction of respondent 's pension.
[35E F; 36E G] B. J. Shelet vs State of Gujarat & ors.
; , , distinguished.
M. Narasimhachar vs The State of Mysore, [1960] 1 SCR 981 and State of Uttar Pradesh vs Brahm Datt Sharma & Anr., [1987] 2 SCC 179, referred to.
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<s>[INST] Summarize the judgementAppeal No. 1720 of 1986.
From the Judgment and Order dated 5.7.1985 of the Andhra Pradesh High Court in Writ Appeal No. 577 of 1985.
B. Kanta Rao for the Appellant.
K. Madhava Reddy and G. Prabhakar for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
This is an appeal by Special Leave from the judgment of a Division Bench of the Andhra Pradesh High Court dismissing the Writ Appeal No.577 of 1985 filed in that Court.
Very few facts are necessary for the disposal of this ap peal.
The appellant is the owner of a plot comprising roughly 2 acres of land in Ramavarappadu village, Vijayawada Taluk, in the Krishna District in Andhra Pradesh.
The Government of Andhra Pradesh sought to acquire about 1 acre and 89 cents out of the aforesaid land for a public propose.
A Notifica tion under section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as "the said Act") was published in the Government 117 Gazette on February 9, 1976.
The substance of the said notification was published in the locality where the land proposed to be acquired is situated, on April 2, 1978, long after the period of 40 days within which it was required to be published as per the provisions of section 4(1) of the said Act as amended by the Andhra Pradesh (Amendment) Act, 1983, (Act 9 of 1983).
Enquiry under section 5A of the said Act was dispensed with invoking the urgency clause as per section 17(4) of the said Act.
Notification under section 6 was published on the same day as the publication of the notification under section 4(1) of the said Act.
An inquiry was conducted regarding the fixation of compensation to be awarded to the appellant and others whose lands were ac quired under the said notification.
It appears that during the course of the said inquiry the appellant stated to the Land Acquisition Officer concerned that he was willing to agree to the land being acquired provided he was given compensation in a lump sum.
Probably the reason was that if the compensation was awarded in a lump sum without delay, the appellant might have been able to purchase some other land, as his holding was under the ceiling limit.
The aforesaid facts have been found by the Trial Court and accepted by the High Court.
On November 9, 1979, before any award was made, the consent to the acquisi tion of the land given by the appellant, as aforestated, was withdrawn by him and on May 14, 1981, the appellant filed a writ petition in the High Court questioning the validity of the land acquisition proceedings.
The learned Single Judge before whom the said writ petition along with another writ petition came up for hearing held that the appellant had agreed to the acquisition of the said land on compensation being paid as aforestated, and hence it was not open to the appellant to challenge the validity of the said notifica tions issued under section 4(1) and section 6 of the said Act.
It was held by him that the withdrawal of the said representation or consent by the appellant did not in any manner assist him.
The learned Judge dismissed the writ petition filed by the appellant without going into the merits of the aforesaid petition on the aforesaid basis.
This judgment was upheld by the Division Bench of the High Court which dismissed the aforesaid writ appeal.
It is the correctness of these decisions which is impugned before us.
In our view, the learned Single Judge and the Division Bench of the High Court of Andhra Pradesh were, with re spect, clearly in error in dismissing the respective writ petition and the appeal filed by the appellant on the ground that the appellant had stated that he was willing to accept the acquisition provided a lump sum compensation was awarded to him.
The statement of the appellant amounted in law to no more than an offer in terms of the Contract Act.
The said offer was never accepted by the Land Acquisition Officer to whom it was made.
Leave alone, making 118 the award of lump sum compensation, no award at all was made by the said officer awarding compensation to the appellant till November 9, 1979, when the aforesaid offer was with drawn by the appellant or even till the writ petition was filed.
Till the offer was accepted there was no contract between the parties and the appellant was entitled to with draw his offer.
There was nothing inequitable or improper in withdrawing the offer, as the appellant was in no way bound to keep the offer open indefinitely.
The writ petition, therefore, ought not to have been dismissed on the ground of the appellant having made a statement or consented as afore stated before the Land Acquisition Officer.
On the merits, it is clear that the acquisition of the land is bad in law because the substance of the notification under section 40) of the said Act was not published in the locality within forty days of the publication of the notifi cation in the Government Gazette.
The time limit of forty days for such publication in the locality has been made mandatory by section 4(1) of the said Act as amended by the Andhra Pradesh (Amendment) Act.
It is well settled that such non compliance renders acquisition bad in law.
In the result, the appeal succeeds and Rule in the writ petition is made absolute.
It is declared that the acquisi tion of the aforesaid land of the appellant is bad in law.
If the possession has been taken, the same must be returned to the appellant.
The appeal is allowed as aforestated with costs throughout.
T.N.A. Appeal Allowed.
[/INST]The appellant was alleged to have misap propriated a sum of Rs. 12,163.50 [though acquitted of the charge of misappropriation] and for the recovery thereof his 13.07 acres of coffee estate was brought to sale under the Tamil Nadu Revenue Recovery Act, 1894.
On March 30,1979 the sale by public auc tion was held by the Tehsildar.
The first respondent purchased the said estate for a sum of Rs. 12,225 and deposited a sum of Rupees 2000 being 15% of the sale price.
Under sec tion 36 of the Act, he should have deposited the balance consideration within 30 days from the date of the auction.
This sale was con firmed on October 23,1981 and the balance amount was deposited on November 4, 1981.
So the appellant filed an application to set aside the sale but the Revenue Divisional Officer overruled the objections and dismissed the application.
On appeal to Additional District Collector on October 13, 1982, the sale was set aside.
So the first respondent filed writ petition in the High Court and the single High Court Judge quashed the order of the Additional District Collector.
The writ appeal by the appellant to the Division Bench was also dismissed.
Hence the appellant came to this Court.
The appellant urged that under section 36 of the Act it is mandatory that the date and place of sale 'shall ' be published in the Gazetee and that the publication did not mention the place of sale so the sale is invalid in law.
It was further submitted that it was equally mandatory that the balance sale consideration of 85% should be deposited within 30 days from the date of sale which was done by the first respondent only on November 4, 1981 long after one year 182 and eight months of the date of sale and therefore illegal.
While the first respondent contended that it was Form 7 and not Form 7A that would be applicable to the facts of the instant case and that Form 7 contains the place o[ sale and that it was complied with.
Therefore, the said sale is not illegal.
It was further submitted that the deposit was made after protracted correspondence and that the non deposit within 30 days from the date of sale is not illegal since the deposit was accepted by the authority.
Therefore the confirmation of the sale is not illegal.
Granting the special leave, dismissing the writ Petition, setting aside the Judgment of the High Court, and restoring the order of the Additional District Collector, the Court HELD: That in the instant case, the High Court has wholly misconceived section 36 of the Act.
A reading of the said section mani fests that the word 'shall ' is mandatory in the context.
The publication is an invitation to the intending bidders to prepare an partic ipate at the bid.
Unless there is due publica tion of the date and the place of sale, the intending purchasers cannot be expected to run after the sale officer.
The sale officer has a statutory duty and a responsibility to have the date and place of sale mentioned in the notice giving due, publication in terms of the Act and the Rules.
Public auction is one of the modes of sale intending to get highest competitive price for the property and it also ensures fairness in actions of the public authorities or the sale officers who should act fairly objectively and kindly.
Nothing should be suggestive of bias favouritism nepotism or beset with suspicious features of under bidding detrimental to the legitimate interest of the debtor.
[184 F, G 1 85 A] Further it is settled law that the word 'shall ' be construed in the light of the purpose of the Act or Rule that seeks to serve.
Even though the word 'shall ' be ordi narily mandatory but in the context or if the intention is otherwise it may be construed to be directory.
The construction ultimately depends upon the provision itself.
Considered from this prospective of non compliance of section 35 that is comission to mention the place of sale would visit the deprivation of the property to the debtor for an adequate consideration due to absence of competing bidders.
Hence the specification of the date & place of sale 'shall ' be mandatory.
The forms either 7 or 7A are only procedural and they should be in conformity with section 36.
The form cannot prevail over the statute.
The omission of specification of the place of sale in the form renders the sale not merely irreg ular but also invalid.
[185 C; H 186 B] 183 Equally the second objection is insur mountable.
It is mandatory that the balance of the sale amount shall be remitted within 30 days from the date of auction and if not the earnest money deposited is liable to forfei ture.
Section 36 mandates remittance of the balance of 85% of the sale consideration within 30 days from the date of auction.
It is obligatory on the purchaser to deposit the amount within the period unless prevented by an order of the Court or Tribunal.
So the confirmation of sale without compliance is illegal and the sale is vitiated by manifest error of Law & rightly set aside by the Addi tional District Magistrate.
The High Court has committed error in law in interfering with the order of the appellate authority.
[186 B D]
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<s>[INST] Summarize the judgementminal Appeal NO.
134 of 1961.
Appeal from the judgment and order dated March 28/29, 1961, of the Calcutta High Court in Criminal Appeal No. 769 of 1960.
D. N. Mukherjee, for the appellant.
P. K. Chakravarti and P. K. Bose, for the respondent.
December 10.
The judgment of the Court was delivered by AYYANGAR, J.
This is an appeal on a certificate under article 134 (1) (c) against the conviction of the appellant under section 302, Indian Penal Code and the sentence for imprisonment for life passed against him for the said offence.
One Pancham Sukla was an employee under the Calcutta Port Commissioner where also the 854 appellant was employed.
Pancham attended office last on the 10th of March, 1960 and at about 5.30 that evening he was seen in the company of the appellant.
That was the last time he was seen alive and since then he has not been found.
Pancham not having returned to his house, his brother in law and another lodged a report with the police stating that Pancham had been missing for the previous two days and in the said report gave a description of the missing person as well as the clothes that he wore at the time he left his residence.
The fact that Pancham was last seen with the appellant was stated in a further report which the brother in law lodged with the police on the next day March 13, 1960.
The appellant was arrested on March 21, 1960 and on interrogation by the police he stated that Pancham Sukla was dead and admitted that he had buried the body of the deceased in the mud in a tank of which he gave a description.
The place pointed out was searched and therefrom a human skeleton partly covered with a torn dhoti, underwear and a torn kurta in the side pocket of which was found a flag, were discovered.
The appellant was also stated to have pointed out to the police in the course of further investigation that he had thrown a knife into the same tank.
A search was made when not merely a knife but a shoe with a rubber sole, a human lower jaw bone etc., were recovered.
After some more investigation a complaint was laid before the Magistrate, who after enquiry committed the appellant to take his trial before the Sessions Court where he was tried with the aid of a jury.
of two offences : (1) under section 364, Indian Penal Code of having abducted Pancham Sukla in order that he might be murdered, and (2) the substantive offence of having committed the murder under section 302, Indian Penal Code.
It may be mentioned that at the trial the articles recoverd the dhoti, shirt, underwear, 855 shoe and the flag were all indentified as having belonged to and being worn by the deceased when he was last seen.
The jury accepted the evidence of the prosecution and returned a verdict of guilty against the appellant on both the counts.
The learned Session 's judge accepted the verdict and sentenced him to death under section 302, Indian Penal Code and to rigorous imprisonment for life in respect of the offence under section 364, Indian Penal Code.
The appellant filed an appeal to the High Court of Calcutta and the learned judges acquitted the appellant of the offence of kidnapping under section 364, Indian Penal Code but confirmed the finding of guilt as regards the offence of murder tinder s.302, Indian Penal Code but reduced the sentence to imprisonment for life.
Having regard to the points which have been urged before us we do not think it necessary to canvass the grounds upon which the learned judges set aside the verdict of guilty returned by the jury and the conviction of the appellant by the Sessions judge in respect of the offence under section 364, Indian Penal Code, but are concerned only with two points which have been made by learned Counsel in support of the appeal.
The first point urged relates to the identification of the skeleton which was found in the tank as that of the deceased Pancham Sukla; in other words, whether there was proof that Pancham Sukla was killed or had even died.
The identification of the skeleton rested on three distinct lines of evidence : (1) The statement of the appellant to the police under section 27 of the Indian Evidence Act which led to the discovery of the skeleton; (2) The identification of the clothes, shoe etc.
which were found on or near the skeleton as those which were worn by Pancham Sukla at the time he last left his house.
The place where these articles were discovered in relation to that where the skeleton was 856 found unmistakably pointed to the articles having formed part of the dress of person whose skeleton was there found; and (3) a photograph of Pancham Sukla superimposed on the photograph of the skeleton.
judge and the High Court as regards the admissibility in evidence of the superimposed photograph as a means of identifying the skeleton as that of the deceased and it is this legal objection raised by the appellant that forms the ground of the certificate granted by the learned judges of the High Court.
Learned Counsel urged before us that the superimposed photograph was not admissible in evidence and that its reception vitiated the verdict of the jury.
We are clearly of the opinion that even if this photograph was not admissible in evidence the verdict of the jury and the conviction of the appellant could not be set aside, because there was very cogent other evidence to prove the identity of the skeleton.
Since, however, the learned judges of the High Court have thought fit to grant a certificate, though they were themselves conscious of the fact that besides the photographs there was plenty of other evidence to sustain the conviction, we consider it proper to express our opinion on the question.
The process adopted for taking the superimposed photograph as explained by P. W. 18 the Assistant Chemical Examiner of the West Bengal Government was this : He first got a photogrgph of Panchom Sukla.
This was photographed, the negative being taken on a quarter plate and the negative was enlarged.
He got the skull and as the skull Was broken in some parts the bones were pieced together and an enlarged photograph of the skull as reconstructed was taken.
A negative of this was enlarged to the same size as the negative of the photo of the deceased with the angle and positions of the two being identical.
The two negatives were 857 then superimposed.
For the superimposition the technique employed by him was thus explained : "The ground glass of the camera was taken out, the negative of the photograph alleged of Pancham Sukla was placed on it, prominent markings of the negative were carefully jotted down on the ground glass, the markings being the following, viz., nasion nasomental line, malar bones with prominences and two outer canthuses and two inner canthuses of the two eye balls and the inner ends of the supra orbital ridges, thereafter the ground glass was fitted in the camera, the skull was so orientated that all the points of the skull came in exact position with the markings made on the ground glass as mentioned when the photograph of the skull was taken; then the two negatives were placed by aligning in such a way that all the points as mentioned above corresponded on a sensitive bromide paper under an enlarger.
The resultant is the photograph submitted to the Court.
" The photographer who executed this work under the supervision of P. W. 18 was Tapendra Nath Mazumder, who was examined as P. W. 19.
This superimposed photograph showed the shape and contour of the bones of the face underneath the face as it looked when the deceased was alive, and the prosecution sought by means of this document to establish the identity of the skull as that of the deceased, or in any event to dispel any positive argument for the.
defence that the skull was not that of the deceased.
The contention urged before us by learned Counsel was that this photograph was not admissible under any section of the Indian Evidence Act.
If learned Counsel is right here, he could succeed in 858 having this evidence rejected as inadmissible.
We are, however, clearly of the opinion that it is admissible in evidence under section 9 of the Evidence Act.
The section reads: "9.
Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.
" The question at issue in the case is the identity of the skeleton.
That identity could be established by its physical or visual examination with reference to any peculiar features in it which would mark it out as belonging to the person whose bones or skeleton it is stated to be.
Similarly the size of the bones, their angularity or curvature, the prominences or the recessions would be features on which examination and comparison might serve to establish the " 'identity of a thing" whithin the meaning of section 9.
What we have in the present case is first a photograph of that skull.
That the skull would be admissible in evidence for establishing the identity of the deceased was not disputed, and similarly a photograph of that skull.
That a photograph of the deceased was admissible in evidence to prove his facial features, where these are facts in issue or relevant facts, is also beyond controversy.
Now what P.W. 18 with the assistance of P.W. 19 has done is to combine these two.
The outlines of the skull which is seen in the superimposed photograph show the nasion prominences, the width of the jaw bones and their shape.
the general contours of the cheek bones, the position of the eye cavity 859 and the comparison of these with the contours etc., of the face of the deceased as seen in the photograph serve to prove that features found in the skull and the features in the bones of the face of the deceased are indentical or at least not dissimiliar.
It appears to us that such evidence would clearly be within section 9 of the Evidence Act.
The learned Counsel for the appellant urged that the superimposed photograph was not a photograph of any thing in existence and was for that reason not admissible in evidence.
This argument proceeds on a fallacy.
In the first place, a superimposed photograph is not any trick photograph seeking to make something appear different from what it is in reality.
There is no distortion of truth involed in it or attempted by it.
A superimposed photograph is really two photographs merged into one or rather one photograph seen beneath the other.
Both the photographs are of existing things and they are superimposed or brought into the same plane enlarged to the same size for the purpose of comparison.
Possibly some illustrations might make this point clear.
For instance, if the photo of the deceased when alive were printed on a transparent medium and that were placed above a photograph of the skull both being of the same size the visual picture seen of the two together would approximate to the document objected as inadmissible.
In the above, it would be seen both the photographs would be admissible in evidence and no objection could be taken to their being examined together.
Again for instance, if instead of a two dimensional photograph we had first a hollow model of the head of the deceased say of transparent or semi transparent material constructed or made from a photograph, that certainly would be admissible in evidence provided there was proof that the model was exactly and accurately made.
If the model were dismantled into segments and placed upon the skull with a view 860 to show that the curves and angles, the prominences or depressions etc.
exactly corresponded there could be no dispute that it would be a perfect method of establishing identity.
If this were granted the superimposed photograph which is merely a substitute for the experiment with the model which we have just now described would be equally admissible as evidence to establish the identity of a thing.
It was pointed out that this was the first occasion that in India an identity of a skeleton was sought to be established by means of superimposed photographs and that P. W. 18 had done this experiment by reference to what he had read in the books on the subject and that on that ground the evidence could ' not be accepted.
Any deficiency in scientific accuracy might go to the weight of the evidence which in the case on hand was a matter for the jury to consider, but we are now only on a very narrow question as to whether it is excluded from evidence as inadmissible.
Our answer is that it was admissible in evidence.
, The next point urged was that there had been a misdirection to the jury in setting out the statement of the accused to the police which led to the discovery of the skeleton.
We have carefully gone through the charge to the jury and are satisfied that there is no substance in this objection.
The learned Sessions judge has quoted extracts from the decision of the Privy Council in Kotayya vs Emperor (1) and of this Court in State of U. P. vs Deoman Upadhyaya (2) in which the scope of section 27 of the Indian Evidence Act has been discussed and has drawn to the attention of the jury only that portion of the statement of the accused which led to the discovery of the skeleton and the knife etc.
Lastly it was urged that the grounds upon which the learned judges had set aside the conviction of the appellant of the offence under section 364, Indian Penal Code would necessarily lead to the conclusion (1) A.I.R. 1947 P.C. 67.
(2) ; , 861 that he could not be held guilty of an offence under section 302, Indian Penal Code.
The argument was on these lines.
The learned judges considered that the appellant had not, having regard to certain facts which they considered had been made out, the intention of killing Pancham when he took him out and that the killing must have taken place as a result of some quarrel which arose between them.
From this learned Counsel sought to urge : (1) that there was a quarrel, (2) that having regard to the quarrel the appellant must have had the right of private ,defence, and that (3) consequently killing was either fully protected or at the most it was a case of an offence under section 304 Part 1, Indian Penal Code.
We consider that there is no foundation for this argument.
The trial was by jury whose verdict was that the appellant was guilty of murder.
As we stated earlier, we are not now concerned with the correctness of the acquittal by the High Court of the appellant of the offence under section 364, Ind tan Penal Code or of the reasons on which that order was based.
We must, however, point out that there is no suggestion before us that save and except what we have discussed earlier there had been any misdirection by the Sessions judge in his charge to the jury.
There is therefore no scope for the argument that that verdict should be interfered with or the conviction based on it altered on hypothetical considerations not founded on any facts on record.
[/INST]In determining the validity or otherwise of a pre Constitution statute on the ground of any of its provisions being repugnant to the equal protection clause of the Constitution, two principles 86 662 have to be borne in mind.
Firstly, the clause bag no retrospective effect and even if the law is in any sense discriminatory, it must be held to be valid for all past transactions and for, enforcement of rights and liabilities accrued before the coming into force of the Constitution.
Secondly, article 13 (1) of the Constitution does not necessarily make the whole statute invalid even after the advent of the Constitution.
It invalidates only those provisions which are inconsistent with the fundamental rights guaranteed under Part III of the Constitution.
Further, the fact that trial was continued even after 26th January, 1950, under the earlier Regulation which is in some respects discriminatory would not necessarily render the subsequent proceedings invalid.
All that the accused could claim is that what remains of the trial must not deviate from the normal standard in material respects, so as to amount to a denial of the equal protection of laws within the meaning of article 14 of the Constitution.
For the purpose.
of determining whether the accused was deprived of such protection, the Court has to see first of all whether after eliminating the discriminatory provisions in the Regulation, it was still possible to secure to the accused substantially the benefits of a trial under the ordinary law; and if so, whether that was actually done in the particular case.
On the 5th January, 1950, the case of the accused who was charged with murder, arson, rioting and other offences which was pending before a Special Tribunal was made over to a Special Judge in pursuance of the provisions of the Hyderabad Regulation X of 1359 F., which abolished the Special Tribunal Regulation of 1949.
The trial commenced on the 11th February, 1950, after the new Constitution came into force and the accused was convicted and sentenced to death.
His appeal was dismissed and the sentence of death was ultimately confirmed by the High Court.
It was contended that the entire trial was illegal inasmuch as the Regulation under which the accused was tried contained several provisions which were in conflict with the equal protection clause (article 14) of the Constitution and became void after the 26th January 1950.
Held, (1) The provisions in the Regulation eliminating committal proceedings and substituting the warrant procedure for sessions procedure in the trial of offences did not render the trial illegal as the committal proceeding was not an indispensable preliminary to a sessions trial under the Hyderabad Criminal Procedure Code.
(2) On a proper interpretation of section 8 of the Regulation the right of an accused to apply for transfer of his case was not taken away and the right of revision was taken away only in respect of non appealable sentences.
(3)Section 8 of the Regulation was void in so far as it took away the provisions relating to confirmation of sentences but as this part of the Regulation was severable from the remaining 663 portion of the section the provisions of the Hyderabad Criminal Procedure Code relating to confirmation of sentences could be followed, and those provisions did not in any way affect the procedure for trial laid down in the Regulation.
(4)The fact that the Nizam 's consent had not been obtained could not vitiate the trial as such consent is necessary only before execution of the sentence.
Held also, that the delegation of the authority of the Chief Minister to make over cases for trial to the Special Judge, by a general notification authorising all civil administrators of the districts to exercise within their respective jurisdictions the powers of the Chief Minister under section 5 (b) was not invalid.
Section 5 (b) does not require that the delegatee must be mentioned by name.
Qasim Bazvi 's case ([1953] S.C.R. 589) applied.
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<s>[INST] Summarize the judgementN: Criminal Appeal No. 499 of 1976.
Appeal by Special Leave from the Judgment and Order dated 22 7 1975 of the Punjab & Haryana High Court in Criminal Appeal No. 166/75 and Murder Reference No. 10/75.
O.P. Sharma and M. section Dhillon for the Appellant.
R.K. Jain for Respondents Nos. 1 and 3 to 6.
R.K. Kohli and R. C. Kohli for the complainant.
The Judgment of the Court was delivered by SARKARIA, J.
This appeal by the State of Punjab is directed against a judgment, dated July 22, 1975, of the High Court of Punjab and Haryana, whereby the appeal of the respondents (hereinafter referred to as the accused) was accepted and they were acquitted of the double murder charge against them.
The prosecution story narrated by Resham Singh (P.W. 2), who claims to be an eyewitness of the occurrence, runs as follows.
Resham Singh (P.W.2) used to live with his brother in law, Hazara Singh deceased, in a hamlet in the fields outside the habitation of village Cheema.
One Ajit Singh of village Dhual was murdered, and Wassan Singh accused and his party men were tried therefor.
At the trial, Hazara Singh deceased appeared as an eyewitness of that murder.
The trial court convicted Wasson Singh and his companions in that case.
They went in appeal to the High Court.
Pending the appeal the High Court enlarged Wasson Singh accused on bail.
The occurrence now in question in the instant case took place when Wasson Singh was on bail.
The lands of Avtar Singh, Mukhtar Singh and Harbhajan Singh accused (respondents) adjoin the lands of Hazara Singh deceased.
Three or four days prior to the incident in question, the cattle of these accused persons trespassed on the land of Hazara Singh and damaged his cotton crop.
Thereupon, a sharp altercation took place 620 between Hazara Singh and Resham Singh on one side and Harbhajan Singh and Mukhthar Singh on the other.
Gajjan Singh son of Gopal Singh resident of the village interceded and pacified the parties.
Joginder Singh accused respondent is the brother of Mukhtar Singh accused respondent while Harbhajan Singh Respondent is their first cousin.
Mukhtar Singh and Harbhajan Singh accused are alleged to be partyman of Wasson Singh.
On August 4, 1973 at about 3.30 p.m., Resham Singh (P.W.2).
Resham Singh (deceased) son of another Hazara Singh and Hazara Singh deceased were proceeding by the foot path from the Bus Stand Amarkot to their hamlet.
On the way Bachan Singh, brother of Hazara Singh, met them and proceeded along with them.
When they reached near the fields of Jarmaj Singh Sarpanch of Mahmoodpura, all the six accused, namely, Wasson Singh, Baj Singh, Meja Singh, Joginder Singh, Mukhtar Singh and Harbhajan Singh emerged from the sann crop and came to the bank of the watercourse.
Baj Singh was armed with a pistol and the other five accused were armed with rifles.
Wasson Singh, Joginder Singh and Mukhtar Singh fired their rifles at Hazara Singh.
The rifle shots hit Hazara Singh on the left side of his head, and he dropped dead.
Resham Singh (P.W.2), Bachan Singh and Resham Singh deceased started running towards the ploughed fields.
Meja Singh, Harbhajan Singh and Baj Singh chased them.
Meja Singh and Harbhajan Singh encircled Resham Singh deceased and shot him dead with rifle shots.
Baj Singh chased Resham Singh (P.W. 2) and Bachan Singh (P.W. 3) and fired at them with his pistol.
When these two were running away, the other two accused also fired at them.
Resham Singh and Bachan Singh, however, succeeded in escaping unhurt.
Resham Singh (P.W. 2) immediately reached the Bus Stand Amarkot, picked up his motor cycle which was lying there at a shop and drove fast to Police Station Valtoha, where he lodged the First Information Report (exhibit PE) at 4.30 p.m.
Police Sub Inspector Bishambar Lal recorded the report of Resham Singh and sent a copy of the same as a special report to the superior officers, including the Judicial Magistrate, First Class at Patti, who received the copy of the F.I.R. at 6.30 p.m., on the same day.
While running away from the spot Resham Singh (P.W. 2) had left behind his shoe (exhibit P 1) near the scene of murders.
Sub Inspector Bashambar Lal reached the scene of occurrence at 5.30 p.m. and started investigation.
He prepared the inquest reports regarding the deaths of Hazara Singh and Resham Singh deceased persons.
He also took into possession blood stained earth 621 and other relevant articles lying near the two dead bodies.
He found two empty cartridge cases at the scene of Hazara Singh 's murder.
He took them into possession and sealed them into a parcel.
He also seized two pairs of shoes lying at the spot.
After his arrest, Mukhtar Singh accused was interrogated by the Investigating Officer on August 31, 1973.
After making a statement, Mukhtar Singh accused, in the presence of witnesses, led the police to the discovery of the rifle (exhibit P 7) and some live cartridges.
The rifle and the empty cartridges earlier found at the scene of crime were sent to the ballistic expert for examination and opinion.
After examination, the ballistic expert of the Forensic Science Laboratory, Chandigarh, reported (vide exhibit P. 9) that the 303 fired cartridge, marked C, had been fired through the 303 rifle marked `A ' by him.
But no definite opinion could be given regarding the linkage of the fired cartridge marked C, with the 303 rifle marked `A ' due to lack of sufficient individual characteristic marks on C2.
Joginder Singh accused was arrested on August 24, 1973 and Baj Singh accused on December 18, 1973.
The post mortem examination of the dead body of Resham Singh was performed by Dr. Gursharan Kaur on August 5, 1973 at 8 a.m.
The Doctor found five gun shot injuries on his body.
Two of these were wounds of entry, with everted margins on the back of the left chest.
No charring was present on any of these gun shot wounds.
The death in the opinion of the Doctor was due to shock and haemorrhage resulting from gun shot injuries on the chest which were sufficient to cause death in the ordinary course of nature.
On the same day, Dr. Gursharan Kaur conducted the autopsy on the dead body of Hazara Singh and found four fire arm injuries, two of which were wounds of entry and two were wounds of exit.
All these injuries were on the skull.
They involved fracture of the skull and damage to the brain.
These injuries had been caused with firearm and were sufficient to cause death instantaneously, in the ordinary course of nature.
At the trial, the main stay of the prosecution was the testimony of the two eye witnesses, Resham Singh (P.W.2) and Bachan Singh (P.W.3).
Examined under Section 342, Cr.
P.C., Wasson Singh accused admitted that he along with others was tried for the murder of Ajit Singh of village Dhual and Hazara Singh deceased had appeared against him as eye witness of that murder; and that he (Wasson Singh) was convicted by the Court of Session, but had been released on bail 622 pending his appeal in the High Court.
He denied the rest of the prosecution case and stated that he had been falsely implicated by the relations of Ajit Singh deceased on suspicion; and that on the day of occurrence, he was working as a Conductor on a truck at Muzaffarnagar.
The plea of Baj Singh was one of plain denial of the prosecution case.
He stated that his brothers Punjab Singh, Narinder Singh and Bagicha Singh had been prosecuted for the murder of one Puran Singh who was a relation of Bachan Singh (P.W.3); that Punjab Singh and his companions were acquitted in that case.
Baj Singh added that he used to look after the defence of the accused in Puran Singh 's murder case; and that on account of this, he had been falsely implicated.
He further stated that at the time of occurrence, he was residing in U.P. Meja Singh accused, also, denied the prosecution case.
He stated that one Balkar Singh of Village Wan had been murdered.
He (Meja Singh) used to look after the defence of Jarnail Singh (his wife 's brother, who was being tried for the murder of Balkar Singh; that on account of this, the relation of the said Balkar Singh had, in connivance with the complainant party, falsely implicated him in the instant case.
The remaining accused, also, denied the circumstances appearing in evidence against them.
The learned Additional Sessions Judge, Amritsar, who tried the case against these six accused persons, found that Wasson Singh had a strong motive to murder Hazara Singh deceased, because the latter had appeared as an eye witness against Wasson Singh in Ajit Singh 's murder case.
The trial Judge further accepted the prosecution evidence in regard to the fact that a few days before this occurrence in question, there was a: quarrel between Hazara Singh deceased and Resham Singh (P.W. 2) on one side and Mukhtar Singh, and Harbhajan Singh accused on the other, when the cattle of the accused had trespassed on the land of the deceased and damaged his cotton crop; and that on account of this ill will, Joginder Singh, Mukhtar Singh and Harbhajan Singh accused had a sufficient motive to join hands with Wasson Singh accused to murder Hazara Singh deceased.
The trial Judge further found that the prosecution had failed to establish the exact nature of the motive which might have actuated Meja Singh and Baj Singh to murder Resham Singh deceased.
The trial Judge further held that the F.I.R. which had been lodged by Resham Singh with great promptitude at Police Station Valtoha, which was about three miles from the place of occurrence, furnished valuable corroboration of the evidence of Resham Singh (P.W. 2).
623 He accepted the evidence of Resham Singh and Bachan Singh.
He further found that Sub Inspector Bishambar Lal had tried to favour Joginder Singh accused by fabricating a note in his zimini at some subsequent stage.
This note is to the effect, that Joginder Singh was, in fact, present irrigating his nearby fields and he joined the police investigation on the very day of occurrence and had remained with the police till the investigation by the Deputy Superintendent of Police.
The trial Judge disbelieved the plea of alibi set up by Meja Singh accused.
In the absence of independent evidence, the trial Judge was unable to hold from the bare testimony of Bishamber Lal, Sub Inspector, that the rifle (exhibit P 7) had been recovered from Mukhtar Singh accused.
He, however, criticised the conduct of Sub Inspector Bishamber Lal in not sending the empty cartridges found at the spot to the ballistic expert of the Forensic Laboratory, Chandigarh, with due promptitude.
In the result, the trial Judge held that Wasson Singh, Joginder Singh and Mukhtar Singh accused had fired their rifles at Hazara Singh deceased, and had caused his death.
He therefore, convicted these three accused for the substantive offence under Section 302, Penal Code.
He further held that the common object of the unlawful assembly constituted by the six accused was to murder Hazara Singh deceased.
He therefore, further convicted all the six accused under Section 302 read with Section 149, Penal Code, for the murder of Hazara Singh.
The trial Judge found that the murder of Resham Singh did not appear to have been caused in prosecution of the common object of the said unlawful assembly.
He therefore, convicted Baj Singh, Meja Singh and Harbhajan Singh accused only under Section 302 read with Section 34, Penal Code, for the murder of Resham Singh deceased and sentenced each of them to imprisonment for life and a fine of Rs. 200/ .
In respect of the murder of Hazara Singh, Wasson Singh was sentenced to death, while each of the other five accused were sentenced to imprisonment for life and a fine.
The trial Judge referred the case to the High Court for confirmation of the death sentence of Wasson Singh.
All the accused, also appealed against their conviction and sentences.
The High Court allowed the appeal, declined the reference and rejected the evidence of the eye witnesses, Resham Singh (P.W. 2) and Bachan Singh (P.W. 3), for these reasons: (i) Both these witnesses are closely related to the deceased Hazara Singh, who was the principal target of the accused.
(ii) (a) Excepting in the case of Wasson Singh who had undoubtedly a grudge against Hazara Singh deceased, it has not been 624 satisfactory established by the prosecution that the other five accused had any motive to commit the murders in question.
(b) Gajjan Singh, who is said to have interceded and pacified both the parties at the time of the alleged quarrel over cattle trespass, three or four days prior to the occurrence, between Mukhtar Singh and Harbhajan Singh on one hand and Hazara Singh deceased and Resham Singh (P.W. 2) on the other, has not been examined by the prosecution.
(c) There was no mention about this earlier incident in the statement of Bachan Singh (P.W. 3) before the police during investigation.
(iii) Both Resham Singh and Bachan Singh, P.Ws.
had earlier been involved in cases of serious crime, and Bachan Singh was admittedly registered as a bad character with the Police.
On account of their antecedents, Resham Singh and Bachan Singh do not appear to be reliable people.
(iv) The prosecution story is highly unnatural.
The presence of these two eye witnesses along with the deceased persons was unlikely.
Had these witnesses been with Hazara Singh deceased, they would have been the target of attack after Hazara Singh was killed and not Resham Singh deceased against whom the accused had no grudge.
(v) Hazara Singh deceased, Bachan Singh and Resham Singh, P.Ws.
, all admittedly reside in the hamlet of Hazara Singh deceased, and if they had to go to Amarkot for making purchases, they would have in all probability gone together.
Bachan Singh 's version, that he had gone to Amarkot to make enquiries regarding the availability of diesel and on his return journey in the way, met and joined the company of his brother Hazara Singh deceased, and his companions, was not believable, because there was no need for Bachan Singh to have gone to Amarkot for the purchase of diesel as he could have asked Hazara Singh to make the necessary enquiries.
(vi) There is a material inconsistency in the testimony of the two eye witnesses as to when Hazara Singh deceased and Resham Singh (P.W. 2) had left their behak (hamlet).
From the statement of Resham Singh (P.W. 2), it appears that from their behak they had gone to Amarkot that very day for purchasing cloth and on the return journey they met Bachan Singh.
As against this, the story told by Bachan Singh is that a day earlier Hazara Singh deceased and Resham Singh, P.W. had left their behak for some unknown destination and that a day later they had met him at the adda, after their departure from the behak the previous day.
This version completely belies the version of Resham Singh (P.W. 2) that they had left their behak 625 in order to make purchases of cloth and other articles.
(vii) Another odd feature brought out from the evidence of Resham Singh (P.W. 2) is the presence of motor cycle at Amarkot on that day.
It is surprising that he could afford to maintain a motorcycle from the meagre income that he would have got from his 5 or 6 acres of land.
His explanation as to why he left the motor cycle at Amarkot, is also not convincing.
(viii) The investigation of the case conducted by the Sub Inspector Bishamber Lal (P.W. 13) does not inspire confidence.
(a) The evidence relating to the recovery of empty cartridges (vide exhibit P.G.) and pair of shoes from the spot near the dead body of Hazara Singh, was not reliable, because P.W. 13 did not mention about the presence of these articles in the inquest report (exhibit PDZ).
(b) Though the empty (crime) cartridges recovered from the spot were sent to the ballistic expert earlier, they were returned to the Police Station on the plea that the test cartridges had not been sent along with those empties.
"Even if it was so, there was no need of sending the crime cartridges to the Police Station, as the test cartridges could be sent for through a separate letter.
In this situation, the suggestion that the crime cartridge had been later on fired through rifle (exhibit P7) when it was recovered cannot be considered improbable".
(ix) "On arrival at the scene of the incident, P.W. 13 found Joginder Singh accused at a distance of about 100 yards irrigating his field.
According to Bishamber Lal, he interrogated Joginder Singh there and then, but did not arrest him.
If Joginder Singh accused had been found near the scene of the crime within a short time, engaged in his normal activities, his participation in the crime would be highly improbable".
Learned counsel for the appellant vehemently contends that the reasoning of the High Court is manifestly unsound, if not wholly perverse.
Great emphasis has been laid on the fact that the First Information Report, in this case was lodged by Resham Singh (PW 2) with utmost promptitude, and even its copy had reached the Magistrate at about 6 or 6 30 p.m. at Patti, on the same day.
In the First Information Report, proceeds the argument, all the material facts including the names of the accused and of the witnesses have been mentioned It is submitted that since this F.I.R. was made without delay in circumstances in which the informant had no time to concoct a false story, it furnished valuable corroboration of the evidence of Resham Singh (P.W. 2), and made his evidence safe enough to be 626 accepted.
It is further maintained that in the first place, the prosecution had established that Mukhtar Singh, Harbhajan Singh and Joginder Singh had also a motive to join hands with Wasson Singh to murder Hazara Singh deceased, and that even if it was held that such motive on the part of the companions of Wasson Singh accused had not been substantiated as the High Court has held then P.Ws. 2 and 3 had also no motive or animus to falsely implicate them.
Counsel have criticised the failure of the High Court to discuss the value and effect of the F.I.R. lodged by P.W. 2.
It is emphasised that the circumstance that the F.I.R. was made without delay was a circumstance of paramount importance in evaluating Resham Singh 's evidence in particular and the prosecution evidence in general.
It is argued that the omission on the part of the High Court to deal with and discuss the F.I.R. has caused serious aberration in its approach and vitiated its appreciation of the evidence of the eye witnesses.
On the other hand, Shri R. K. Jain, learned counsel for the respondents, has submitted that since the reasons given by the High Court in support of the acquittal of the accused cannot be called perverse, this Court should not, in keeping with its practice, disturb the acquittal even if it feels inclined to hold that the view of the evidence taken by the trial court is also reasonable.
Shri Jain has further tried to support the reasoning of the High Court.
We have carefully considered the contentions canvassed on both sides.
We are also not unmindful of the fact that we are dealing with an appeal against an order of acquittal in a double murder case.
Even so, we find that the reasons given by the High Court for holding that Resham Singh (P.W. 2) was not an eye witness of these murders, are utterly unsustainable.
The mere fact that Resham Singh (P.W. 2) had succeeded in escaping unhurt, or that there are discrepancies in the statements of Resham Singh (P.W. 2) and Bachan Singh (P.W. 3), as to whether they had gone to Amarkot with Hazara Singh deceased on the very day of occurrence or a day earlier, was no ground for jumping to the conclusion that P.W. 2 was not in the company of the deceased or nearabout the scene of occurrence when Hazara Singh and Resham Singh were shot dead.
The occurrence took place on August 4, 1973, While Resham Singh (P.W. 2) and Bachan Singh (P.W. 3) were examined at the trial on December 27, 1974, that is to say, 17 months after the incident.
Such discrepancies in regard to collateral or subsidiary facts or matters of detail occur even in the statements of truthful witnesses, particularly when they are examined to depose to events which happened long before their examination.
Such discrepancies are 627 hardly a ground to reject the evidence of the witnesses when there is general agreement and consistency in regard to the substratum of the prosecution case.
As rightly observed by the trial court, Resham Singh (P.W.2) was never cross examined by the defence regarding his whereabouts and that of Hazara Singh deceased on the previous night.
The mere fact that P.W. 2 did not make any purchases at Amarkot could hardly be a reason to hold that his being in the company of Hazara Singh deceased at the material time, was improbable.
It is common ground that there was no love lost between Wassan Singh appellant and Hazara Singh deceased.
Wassan Singh, though convicted by the trial court for the murder of Ajit Singh, was released on bail by the High Court pending his appeal.
P.W. 3 is the brother and P.W. 2 a relation of the deceased.
All these three were living together in the same hamlet in the fields.
It is in the evidence of these witnesses that the other accused are partymen of Wasson Singh.
It is further in evidence that sometime before the occurrence both Hazara Singh and Resham Singh,(P.W. 2) were arrested and handcuffed by Darshan Singh, Police Sub Inspector on the allegation that they were indulging in smuggling and would be liquidated.
Both of them however, escaped and appeared with handcuffs on before the Deputy Home Minister and complained against the Police Sub Inspector.
Both were prosecuted for smuggling betel leaves across the border.
It was therefore, not improbable that this trio consisting of Hazara Singh deceased, P.W. 2 and P.W. 3 was, as usual, moving about or carrying on their activities together.
Moreover, the deceased Hazara Singh must have known that Wasson Singh accused who was inimically disposed towards him, was at large on bail.
This was an added reason for this troika to move about for their security, if not for anything else, in the company of each other.
Nor could P.W. Bachan Singh 's presence at the scene of crime be discounted and his evidence discarded merely on the score that there was no necessity for him to go to Amarkot for enquiring about the availability of diesel.
There is one towering circumstance which goes a long way to lend assurance to the claim of P.W. 2 that he was an eye witness of the occurrence.
It is that the F.I.R. (exhibit P.E.) was lodged by him at Police Station Valtoha, so promptly that he had practically no time to spin out a false story.
628 The learned trial Judge has accepted, and rightly so, the sworn testimony of Resham Singh (P.W. 2) and Sub Inspector Bishamber Lal (P.W. 13), who was then Station House Officer, Valtoha, to the effect, that the F.I.R. (exhibit P.E.), was recorded in the Police Station at 4.30 p.m. Police Station Valtoha is three miles from Bus Stand Amarkot.
According to Resham Singh, the occurrence took place at about 3.30 p.m. On seeing the occurrence and after eluding the pursuit, Resham Singh, as he says, ran to Adda Amarkot through the fields covering a distance of about one kilometre.
According to P.W. 2, his motor cycle was lying at a shop in Amarkot.
He picked up his motor cycle from there and drove to the Police Station, Valtoha and without loss of time lodged the first information, there.
The endorsement on exhibit PE, bears out that the copy of the First Information was in the hands of Shri K. K. Garg, Judicial Magistrate, First Class, Patti, at 6.30 p.m.
This circumstance assures the truth of the prosecution evidence on the point that the First Information Report was made by Resham Singh (P.W. 2) at the Police Station at 4.30 p.m., that is within two hours of the occurrence without undue delay.
The learned Judges of the High Court have not at all dealt with the F.I.R. or the promptitude with which it was made.
They doubted Resham Singh 's version that from Amarkot he went on his own motor cycle to Valtoha Police Station.
The argument employed by the High Court is that Resham Singh owned only four or five killas of land, and could not acquire and maintain a motor cycle from the income of his petty holding.
However, this was not the defence case.
In cross examination, the defence themselves, brought out and tried to establish that he was earning by smuggling betel or other things to Pakistan.
Thus, according to the own showing of the defence, P.W. 2 had a source of income other than his agricultural income.
It was, therefore, nothing improbable if Resham Singh owned a motor cycle.
Sub Inspector Bishamber Lal (P.W. 13) was not questioned in cross examination as to whether or not Resham Singh had come to the Police Station on a motor cycle.
He (P.W. 13) was however, questioned as to what transport he had used for going from the Police Station to the scene of murders.
The witness replied that he went on a motor cycle upto Amarkot and from there went on foot to the scene of occurrence.
Resham Singh stated that since it had recently rained, the kacha path from Amarkot to their hamlet in village Ban, had became muddy and unsafe for riding a motor cycle because of the high risk of skidding.
That was why, the witness had left the motor cycle at Adda Amarkot with a shopkeeper.
629 It may be noted that the occurrence took place on August 4, 1973 when the rainy season would be in full swing.
This explanation of Resham Singh (P.W. 2) regarding the kacha path from Amarkot to the scene of occurrence, being non motorable on the day of occurrence, receives inferential support from the fact appearing in the evidence of Bishamber Lal (P.W. 13), that he had to cover the distance from Adda Amarkot to the place of occurrence, on foot.
Thus, the reason employed by the High Court for disbelieving the version of Resham Singh (P.W. 2) regarding his owning and going on a motor cycle from Amarkot to Police Station Valtoha was manifestly unsound.
It was argued before the trial court on behalf of the accused that the occurrence might have taken place at about 2 p.m. when Resham Singh (P.W. 2) was about 400 or 500 yards away in his hamlet, and that on hearing the report of gun fire he was attracted to the scene of crime, and he having seen the dead bodies lying there, went home, took his motor cycle and then drove to the Police Station Valtoha and brought Sub Inspector Bishamber Lal to the scene of occurrence and the Sub Inspector prepared the F.I.R. at the spot after deliberation with Resham Singh and others.
This contention was rightly rejected by the trial court.
As observed earlier, since it had rained a day prior to the occurrence, the kacha path from Amarkot to the scene of occurrence and to the hamlet of the deceased must have been muddy and slippery.
Therefore, the very suggestion that from village Ban to Amarkot and thereafter to Valtoha, Resham Singh went on his motor cycle, was improbable.
Moreover, from the conduct of the Investigating Officer, Bishamber Lal, it appears that he was not favourably disposed towards the deceased and the informant.
Indeed, a suggestion was put to Bishamber Lal (P.W. 13) by the Public Prosecutor, that he has been unfair in the investigation of the case and tried to favour Joginder Singh and Meja Singh accused.
The learned trial Judge found that the investigation conducted by Sub Inspector Bishamber Lal was biased in favour of Joginder Singh and Meja Singh accused persons, and that the Sub Inspector fraudently interpolated a note in his zimini to help Joginder Singh accused.
The High Court has, also, found that this note in the zimini was a fraudulent insertion.
This being the case, Sub Inspector Bishamber Lal would be least disposed to join hands with Resham Singh informant in preparing the First Information Report, after deliberation with him (P.W.2) at the spot.
630 Dr. Gursharan Kaur (P.W. 1) who performed the post mortem examination of the dead bodies of Resham Singh and Hazara Singh on August 4, 1973 between 8 a.m. and 9 a.m. respectively, opined that the time which elapsed between these deaths and their post mortem examination was about 18 hours.
Thus, according to the Doctor 's opinion, also, the deaths took place at about 2 or 3 p.m. on August 4, 1973.
The opinion of the medical witness thus corroborated the version of Resham Singh (P.W. 2) in as much as the latter has testified that the murders took place at about 3.30 p.m.
This means, that the statement of Resham Singh (P.W. 2) in the First Information Report was made without undue delay, and, as such, furnished very valuable corroboration of his testimony at the trial, in all material particular.
If the presence of Resham Singh (P.W. 2) and Dalip Bachan Singh (P.W. 3) at the time and place of murders was probable the further question would be, how far their evidence could be safely accepted against each of the accused persons ? It is true that both these witnesses are related to the deceased, and, as such, are interested witnesses.
Their antecedents, also, are of a questionable nature.
But their antecedents or mere interestedness was not a valid ground to reject their evidence.
Persons with such antecedents are not necessarily untruthful witness.
Nor mere relationship with the deceased was a good ground for discarding their testimony, when, as we have already held, their presence at the scene of occurrence was probable.
All that was necessary was to scrutinise their evidence with more than ordinary care and circumspection with reference to the part or role assigned to each or the accused.
An effort should have been made to sift the grain from the chaff; to accept what appeared to be true and to reject the rest.
The High Court did not adopt this methodology in appreciating their evidence.
Instead, it took a short cut to disposal, and rejected their evidence whole sale against all the accused, for reasons which, as already discussed, are manifestly untenable.
Keeping the principle enunciated above, we have scrutinised the entire material on record with particular focus on the evidence of P.W.2 and P.W.3, against each of the accused.
Excepting the immaterial discrepancies considered earlier, the evidence of P.W. 2 and P.W. 3 was consistent, and their presence as already mentioned, at the time and place of murders was probable.
Even so, as a matter of abundant caution, it will be safe to act on their interested evidence 631 to the extent to which some assurance is coming forth from surrounding circumstances or other evidence.
The story narrated by the eye witnesses, Resham Singh and Bachan Singh is that Wasson Singh, Mukhtar Singh and Joginder Singh first fired a volley of rifle shots at Hazara Singh deceased as a result of which he dropped dead at the spot.
The evidence of the Doctor who performed the autopsy on the dead body of Hazara Singh is to the effect that there were two bullet wounds of entry on the left side of the head.
These wounds were located at a distance of 2 1/2 cms.
from each other.
There were two corresponding wounds of exit.
There was no blackening or charring around these wounds of entry.
This indicates that these injuries were caused by bullets fired almost simultaneously from two separate rifles from a distance beyond 6 feet.
This means at least the rifles fired by two of the three aforesaid accused did find their mark, causing instantaneous death of the deceased.
Now, both the courts below have concurrently found that Wasson Singh had a strong motive to murder Hazara Singh deceased.
This circumstance, by itself, is sufficient to lend the necessary assurance to the evidence of Resham Singh (P.W. 2) and Bachan Singh (P.W. 3) and make it a safe basis for convicting Wasson Singh accused for the murder of Hazara Singh.
The trial court had accepted the evidence of Resham Singh (P.W.2) in regard to the quarrel over cattle trespass that took place 3 or 4 days prior to these murders between Mukhtar Singh and Harbhajan Singh accused on one side, and Hazara Singh deceased and P.W. 2 on the other.
This story finds particular mention in the F.I.R. (exhibit PE) which was lodged by P.W. 2 without undue delay.
The High Court has rejected this story about this previous quarrel on the three fold ground, namely: (a) Gajjan Singh who interceded and pacified the parties has not been examined, (b) No evidence of the extent of damage done to the crop or of any complaint made to village Panchayat has been produced, (c) Bachan Singh (P.W.3), did not mention about this earlier incident in his police statement.
In our opinion, none of these was a valid ground for rejecting the evidence of Resham Singh (P.W.2) in regard to this incident.
Resham Singh 's consistent testimony on this point corroborated by the F.I.R. (exhibit PE) was sufficient to establish this fact beyond doubt.
Thus, it was proved by the prosecution that Mukhtar Singh accused had also a motive to join Wasson Singh accused in killing Hazara Singh.
The circumstance that Mukhtar Singh had also a motive to participate in the murder of Hazar Singh deceased lends assurance to the 632 testimony of Resham Singh (P.W.2) and Bachan Singh (P.W.3), and strengthens the inference of guilt against the said accused, also.
It is in the evidence of Sub Inspector Bishamber Lal (P.W.13) that Mukhtar Singh was arrested on August 18, 1973 and on August 31, 1973 Mukhtar Singh accused, whilst under Police custody, made a disclosure statement in the presence of Ajit Singh and Sardul Singh Constables, that he had kept concealed a 303 rifle with 5 cartridges wrapped in a piece on cloth in a bundle of reeds lying inside the courtyard of his house at village Thathiwala and he could get the same discovered.
P. W. 13 recorded that statement (exhibit P 1).
Thereafter, the accused was taken to village Thathiwala where he led the Sub Inspector in the presence of Sardul Singh and Ajit Singh Constables, to that bundle and got discovered the rifle (exhibit P7) and the cartridges (exhibit P8 to 12) therefrom.
The Sub Inspector prepared the sketch of the rifle and the memo (exhibit PM) which was attested by the aforesaid Constables.
The rifle and the cartridges were sealed into parcels and were thereafter sent through Constable Ajit Singh, with seals intact, to the Police Station where they were received by the Moharrir Head Constable Natha Singh (P.W. 10).
P.W. 13 has also, stated that he had on August 4, 1973 on inspecting the scene of murders, found two empty cartridges (exhibit
P3 and exhibit P4) from near the dead body of Hazara Singh.
The witness took them into possession and sealed them into a parcel in the presence of Anokh Singh and Gajjan Singh witnesses, and prepared the memo (exhibit PG).
The parcel containing the empties was later deposited by the Sub Inspector, with seals in tact, in the Malkhana of the Police Station.
The evidence of Sub Inspector Bishamber Lal, with regard to the seizure of the empty (crime) cartridges from the scene of occurrence on August 4, was supported by Anokh Singh (P.W.4) who is an attesting witness of the memo, Ex.PG.
The witness is a resident of village Cheema.
In cross examination, he revealed that these two fired cartridges were lying at a distance of 1.5 karams (8 or 9 feet) from the dead body of Hazara Singh.
Nothing was brought out in cross examination to show that the witness was in any way interested in the prosecution or was related to the deceased or had any animus against the accused.
Thus, it has been clearly proved that two fired cartridges were picked up from the scene of crime and sealed into parcels which were later deposited with seals intact in the Police Station.
In the memo (exhibit PG), it is mentioned that these fired cartridges were of 303 bore rifle.
633 Ajit Singh Moharrir Head Constable (P.W.11) swore in his affidavit that on August 4, 1973, he received the sealed parcel of 2 empty cartridges from Sub Inspector Bishamber Lal.
The seals on the parcel remained intact so long as the parcel remained in his custody.
Then, there are the affidavits of Avtar Singh Constable (P.W. 9) and Natha Singh Moharir Head Constable showing that on September 24, 1973, the sealed parcels containing the rifle (exhibit P7) and the five live cartridges were sent through P.W. 9 to the Forensic Science Laboratory Chandigarh, who delivered the same in the said Laboratory with seals intact.
The evidence of P.W. 13 regarding the discovery of the rifle (exhibit P7) from Mukhtar Singh accused was fully corroborated by Constable Sardul Singh (P.W. 12).
His cross examination reveals that Mukhtar Singh was interrogated in the Police Station at 4 5 A.M. when he made the statement (exhibit PL), leading to the discovery of the rifle (exhibit P7).
Sub Inspector Bishamber Lal (P.W. 13) has stated that the sealed parcel containing the empty cartridges, that had been found at the scene of crime, was sent to the Forensic Science Laboratory Chandigarh at a date earlier than the one on which the parcel containing the rifle (exhibit P7) and the five live cartridges was sent to the said Laboratory, but it was returned with the objection that it should have been sent along with the test cartridges.
Consequently, this parcel containing the empties was again sent to the Forensic Laboratory along with the sealed parcel containing the rifle (exhibit P7) and the live cartridges recovered from Mukhtar Singh accused.
In the Report (exhibit PQ) of the Ballistic Expert (L. A. Kumar) which was tendered in evidence and admitted without objection, it is opined that the empty (crime) cartridge, marked C1, had been fired through the rifle (exhibit P7).
In cross examination, the defence suggested to P.W. 13, that he had purposely recalled the parcel containing the empty cartridges from the Forensic Science Laboratory for creating evidence against the accused and he did so by firing one cartridge through the rifle (exhibit P7).
The oblique suggestion was that the cartridge, marked C1 which in the opinion of the Ballistic Expert had been fired through the rifle (exhibit P7) was substituted for the original empty cartridge that had been found at the scene of murder.
The Sub Inspector emphatically denied the suggestion.
It was further suggested to P.W. 13 that the rifle (exhibit P7) had, in fact, been handed over to the Police by the relations of the deceased after procuring it from some source.
This was also stoutly denied by P.W. 13.
634 The learned trial Judge discarded this evidence relating to the discovery of the rifle (exhibit P7) at the instance of the accused, Mukhtar Singh, for the reason that Sub Inspector Bishamber Lal, for no good reason, had failed to join respectables of the locality to witness the discovery of the rifle, and that he (P.W. 13) "has tried to be a defence witness rather than the investigating officer".
The trial Judge accepted Anokh Singh 's statement regarding the recovery of the two fired cartridges from the scene of Hazara Singh 's murder on August 4, but he adversely commented on the conduct of Bishamber Lal in delaying the despatch of those crime cartridges to the Forensic Science Laboratory Chandigarh till after the recovery of the rifle.
He observed: "In all probability, Sub Inspector Bishamber Lal wanted to help the accused by creating suspicion with respect to the identity of the firing impressions" (on the empties).
For this reason, according to the trial Judge, the ballistic evidence "will not be corroborative evidence for the prosecution.
" We agree with the trial Court that the investigating officer did not deliberately join with him respectables of the locality to attest the statements (exhibit PL) made by Mukhtar Singh, and to witness the sub sequent discovery of the rifle (exhibit P7) at the instance of Mukhtar Singh.
There was substance in the observation of the trial Judge that the investigation was biased in favour of the accused.
If that was so, the failure of Bishamber Lal (P.W. 13) to join with him respectables of the locality was, by itself, no ground for ruling out the evidence of the discovery of the rifle, altogether.
The partiality of Bishamber Lal towards the defence, rather assures the genuineness of the discovery He was least disposed to 'collaborate ' or 'cooperate ' with the relations of the deceased to procure this rifle (exhibit P7) from some other source and then foist it on Mukhtar Singh.
For the same reason, it is not possible to hold that he recalled the sealed parcel containing the fired (crime) cartridges from the Laboratory at Chandigarh, for substituting a cartridge fired through the rifle (exhibit P7) or for fabricating evidence in support of the prosecution.
Moreover, the parcel containing the two empties must have been returned by the Director of the Forensic Laboratory on his own initiative and not at the instance of the Sub Inspector (P.W. 13).
The omission on the part of this investigating officer to join with him some independent persons or respectables of the locality to witness the recovery devalues that evidence but does not render it inadmissible.
Although a suggestion of "planting" the rifle, and fabricating the evidence of the empty cartridge (C1) was put to Sub Inspector Bishamber Lal in cross examination, no such allegation was 635 made, nor any such plea was set up by Mukhtar Singh accused when the evidence relating to the recovery of the two empties from the spot, the discovery of the rifle (exhibit P7) at his instance and the opinion (exhibit PQ) of the Ballistic Expert was put to this accused in his examination under Section 342, Cr.
P.C. The circumstance of the recovery of the rifle (exhibit P7) and the opinion of the Ballistic Expert that the empty cartridge (marked C1) (found on August 4, at the scene of murder) had been fired through the rifle (exhibit P7), though feeble it might be was relevant and furnished a further pointer to the participation of Mukhtar Singh in the commission of Hazara Singh 's murder by rifle fire.
In sum, sufficient assurance of the testimony of P.W. 2 and P.W. 3, was available from the circumstantial evidence discussed above, regarding the participation of Wasson Singh and Mukhtar Singh accused in the murder of Hazara Singh.
The evidence of the eyewitnesses therefore, could safely be acted upon for convicting Wasson Singh and Mukhtar Singh accused respondents for the murder of Hazara Singh.
But such assurance of the evidence of these eyewitnesses was not available against the remaining accused regarding either of the murders in question.
Joginder Singh accused admittedly was not present when the quarrel over cattle trespass took place between Hazara Singh deceased and P.W. 2 on one side, and Mukhtar Singh and Harbhajan Singh accused on the other.
It has neither been alleged nor proved that Joginder Singh had any motive of his own to murder Hazara Singh deceased.
Although, the investigation betrays a tilt in favour of the accused, and P.W. 13 made a fraudulent insertion in the zimini to help Joginder Singh accused, it cannot be said that the version of P.W. 13 to the effect that when he went to the scene of murders at 5.30 P.M., he found Joginder Singh irrigating his nearby fields at a distance of about 100 yards therefrom and he (P.W. 13) interrogated him there and then, but did not think it necessary to arrest him, is necessarily false.
The absence of motive, and the presence of Joginder Singh near the scene of crime shortly after the murders, engaged in normal agricultural activities does cast a doubt about his participation in the commission of these murders.
P.W. 2 and P.W. 3 have stated that they started running away from the spot, immediately after Hazara Singh was shot dead.
The surrounding circumstances, natural probabilities and the normal course of human conduct also suggest the same inference, that 636 immediately on seeing Hazara Singh being shot down, these witnesses who were following Hazara Singh, ran fast for their lives.
Had they tarried for a while at the scene of Hazara Singh 's murder, it would have been too late for them to escape unhurt.
In such a situation, when they were being pursued by persons armed with fire arms, they could, if at all they turned and looked behind have only a fleeting glimpse in the distance of the assailants of Resham Singh deceased.
That is why, Resham (P.W. 2) is not consistent in his statements as to which of the accused had fired at him when he was running away for his life.
Moreover, it has not been established that any of the six accused had any motive, whatever, to murder Resham Singh deceased.
For the foregoing reasons, we partly allow this appeal by the State, set aside the acquittal of Wassan Singh and Mukhtar Singh accused (respondents) and convict them under Section 302 read with Section 34, Penal Code for the murder of Hazara Singh deceased and sentence each of them to imprisonment for life.
We would, however, accord the benefit of doubt to the rest of the accused (respondents) and maintain their acquittal on all the counts.
Wasson Singh and Mukhtar Singh shall surrender to their bail bonds to serve out the sentences inflicted on them.
N.V.K. Appeal partly allowed.
[/INST]The appellant had been convicted and sentenced to imprisonment exceeding two years by the Sessions Judge, Delhi, on February 26/27, 1979.
By his Order dated February 27, 1979, passed under section 389(3) of the Code of Criminal Procedure, the Sessions Judge who had convicted the appellant suspended the execution of the sentence to afford the appellant time to file an appeal.
On March 21, 1979 the High Court of Delhi admitted his appeal and by an order of the same date directed that his sentence shall remain suspended provided the appellant furnished a personal bond and surety in the amount of Rs. 5,000/ to the satisfaction of the Sessions Judge, which was complied with.
The respondent and the appellant contested the election as rival candidates to the Lok Sabha from No. 18 Mahasamund Parliamentary Constituency in Madhya Pradesh.
The last date for filing nominations was December 7, 1979.
The scrutiny of the nomination papers took place on December 11, 1979.
The Returning Officer by his Order dated December 11, 1979 rejected the objection of the respondent that the appellant was disqualified from being chosen as a candidate in view of sub section (2) of section 8 of the Representation of the People Act, 1951 and accepted the appellant 's nomination as valid.
The result of the election was declared on January 7, 1980.
The election result was notified on January 10, 1980.
The appellant was declared elected and the respondent was defeated.
Thereafter, on February 18, 1980 the respondent filed an election petition 1 of 1980 in the High Court of Madhya Pradesh to get the election of the appellant declared void under section 100(1)(a) and 100(1)(b)(i) of the Act challenging that at the date of the election including the date of the scrutiny of the nomination papers the appellant was disqualified by virtue of section 8(2) of the Act from being chosen as candidate on account of his aforesaid conviction and sentence.
The appellant 's appeal pending in the High Court was transferred to the Supreme Court under the .
The Supreme Court by its judgment dated April 11, 1980 allowed the appeal set aside the conviction and sentence of the appellant and acquitted him of charges against him.
Subsequent 638 to this decision of the Supreme Court, by its judgment dated September 5, 1980 the High Court of Madhya Pradesh allowed the election petition with costs and declared the appellant 's election to be void on the ground contained in section 100(1)(d)(i) of the Act, hence the appeal.
Allowing the appeal, the Court ^ HELD: (1).
Abiding by the principle of stare decisis and following the ratio decidendi of Manni Lal 's case; , , the acquittal of the appellant in appeal prior to the pronouncement of the judgment of the High Court in the election petition had the result of wiping out his disqualification as completely and effectively as if it did not exist at any time including the date of the scrutiny of the nomination papers and that his nomination paper was properly accepted by the Returning Officer.
[660B C] Manani Lal vs Shri Parmai Lal & Ors. ; , applied (2) An order of acquittal particularly one passed on merits wipes off the conviction and sentence for all purposes, and as effectively as if it had never been passed.
An order of acquittal annulling or voiding a conviction operates from nativity.
[654B] Manni Lal vs Shri Parmai Lal & Ors.
, ; ; Dilip Kumar Sharma & Ors.
vs State of Madhya Pradesh, ; , followed.
(3) The ratio decidendi logically deducible from Manni Lal 's case is that if the successful candidate is disqualified for being chosen, at the date of his election or at any earlier stage of any step in the election process on account of his conviction and sentence exceeding two years ' imprisonment, but his conviction and sentence are set aside and he is acquitted on appeal before the pronouncement of judgment in the election petition pending against him, his disqualification is annulled rendered non est with retroactive force from its very inception, and the challenge to his election on the ground that he was so disqualified is no longer sustainable.
[656D E] (4) A plain reading of section 100(1) of the Act shows that it can be conveniently divided into two parts.
Clauses (a), (b) and (c) of the sub section fall in the first part and clause (d) along with its sub clauses falls in the second part.
The distinction between clauses (a), (b) and (c) in the first part and clause (d) in the second part lies in the fact that whereas on proof of any of the grounds mentioned in clauses (a), (b) and (c), the election has to be declared void without any further requirement, in a case falling under clause (d) the election cannot be declared void merely on proof of any of the grounds mentioned in its sub clauses, unless it is further proved "that the result of the election in so far as it concerns the returned candidate has been materially affected".
The expression "any nomination" occurring in sub clause (i) of clause (d) in the second part may include nomination of a returned candidate as well; but in the case of a returned candidate whose nomination has been improperly accepted, the effect on the result of the election so far as it concerns him, is obvious.
However, if the election is challenged on the ground that the nomination of a candidate, other than the returned candidate, has been improperly accepted, the petitioner in order to succeed will be required to prove under clause (d)(i) in addition to improper acceptance the further fact that thereby 639 the result of the election so far as it concerns the returned candidate has been materially affected.
[651H 652D] Clause (a) of sub section (1) requires that the disqualification or lack of qualification of the returned candidate is to be judged with reference to "the date of his election", which date, according to section 67A is "the date on which a candidate is declared by the returning officer under the provisions of section 53 or section 66, to be elected to a House of Parliament or of the Legislature of a State".
But, the word "disqualified" used in clause (a) is capable of an expensive construction also, which may extend the scope of the inquiry under this clause to all the earlier steps in the election process.
Section 7(b) defines "disqualified" to mean "disqualified for being chosen as and for being, a member of either House of Parliament etc.
" The words "for being chosen" in that definition have been interpreted by the Supreme Court in Chatturbhuj 's case; , , to include the whole "series of steps starting with the nomination and ending with the announcement of the election.
It follows that if a disqualification attaches to a candidate at any one of these stages he cannot be chosen." But this definition of "disqualified" is in terms of section 7(b) meant for Chapter III, in Part II of the Act; while section 100 falls in Chapter III of Part VI.
If the expression "for being chosen" which is a central limb of the definition of "disqualified", is given such an extensive interpretation which will bring in its train the whole series of steps and earlier stages in the election process commencing with the filing of the nominations, it will be repugnant to the context and inconsistent with "the date of his election".
Such a construction which will introduce disharmony and inconsistency between the various limbs of clause (a) has to be eschewed.
In the context of clause (a), therefore, the ambit of the words "for being chosen" in the definition of "disqualified" has to be restricted to "the date of his election" i.e. declaration of the result of the election under section 53 or section 66, and such date is to be the focal point of time in an inquiry under this clause.
[652H 653D] In contrast with clause (a), in a case falling under clause (d)(i) of section 100, if an objection is taken before the Returning Officer against the nomination of any candidate on the ground of his being not qualified, or being disqualified for being chosen the crucial date as per section 36(2)(a) with reference to which the existence or non existence of such disqualification is to be enquired into is the date of scrutiny of the nomination of the candidate.
[653C] Assuming that technically, the election petitioner 's case that survives is one under clause (d)(i), and not under clause (a) of section 100(1).
Even so, the fact remains that, in substance, the election of the appellant is being challenged on the ground that on account of his conviction and sentence exceeding two years, the appellant was under Article 102(1)(e) of the Constitution read with section 8(2) and 36(2)(a) of the Act, disqualified for being chosen to fill the seat concerned.
Such being the real ground of challenge, apart from sub clause (i), sub clause (iv) of clause (d) of section 100(1) will also be attracted, because the phrase "non compliance with the provisions of the Constitution or of this Act etc.
" according to the decision of this Court in Durga Shankar Mehta 's case is wide enough to cover a case where the improper acceptance or rejection of the nomination is challenged on the ground of the candidate being disqualified for being chosen.
[653E G] 640 Durga Shanker Mehta vs Thakur Raghuraj Singh & Ors.
[1955] 1 SCR 267 and Chatturbhuj Vithaldas Jasani vs Nareshwar Parashram Ors., , followed.
(a) It is true that in order to adjudicate upon the validity of the challenge in the appellant 's election under clause (d) (i) of section 100(1), what was required to be determined by the High Court was whether the nomination of the appellant was properly or improperly accepted by the Returning Officer.
But, in order to determine this question, it was necessary for the High Court to decide, as a preliminary step, whether the appellant was disqualified, at the date of scrutiny of the nomination papers, for if he was disqualified, his nomination could not be said to have been properly accepted by the Returning Officer and if, on the other hand, he was not disqualified, his nomination would have to be regarded as properly accepted by the Returning Officer.
The primary question before the High Court therefore, was whether or not the appellant was disqualified at the date of scrutiny of the nomination papers and it is difficult to see how the determination of this question could be made on any principle other than that governing the determination of a similar question under clause (a) of section 100(1).
If, as laid down in Manni Lal 's case, the returned candidate cannot be said to be disqualified at the date of the election, if before or during the pendency of the election petition in the High Court his conviction is set aside and he is acquitted by the appellate court, on the application of the same principle, that, in like circumstances, the returned candidate cannot be said to be disqualified at the date of scrutiny of the nomination papers.
On this view, the appellant could not be said to be disqualified on the date of scrutiny of the nomination paper since his conviction was set aside in appeal by this Court and if that be so, the conclusion must inevitably follow that the nomination of the appellant was properly accepted by the Returning Officer.
The position is analogous to that arising where a case is decided by a Tribunal on the basis of the law then prevailing and subsequently the law is amended with retrospective effect and it is then held by the High Court in the exercise of its writ jurisdiction that the order of the Tribunal discloses an error of law apparent on the face of the record, even though having regard to the law as it then existed, the Tribunal was quite correct in deciding the case in the manner it did.
[656C H] Venkatachalam vs Bombay Dyeing & Manufacturing Company Limited, ; , referred to.
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<s>[INST] Summarize the judgement15 of 1959, 14 of 1960 and 21 of 1959.
Petitions under article 32 of the Constitution of India for enforcement of Fundamental Rights.
Frank Anthony and J. B. Dadachanji, for the petitioners (In Petns.
Nos. 15 and 21 of 1959).
612 H. J. Umrigar, O. P. Rana and A. G. Ratnaparkhi, for the petitioners (In Petn.
No. 14 of 1960).
L. K. Jha and section P. Varma, for the respondent (In Petn.
No. 15 of 1959).
C. K. Daphtary, Solicitor General of India, M. Adhikari, Advocate General for the State of Madhya Pradesh and I. N. Shroff, for the respondent (In Petn.
No. 14 of 1960).
H. N. Sanyal, Additional Solicitor General of India and C. P. Lal, for the respondent (In Petn.
No. 21 of 1959).
November 23.
The Judgment of the Court was delivered by section K. DAS, J.
These three writ petitions have been heard together, as they raise common questions of law and fact.
They relate, however, to three different enactments made by the Legislatures of three different States Bihar in writ petition No. 15, Uttar Pradesh in writ petition No. 21, and Madhya Pradesh in writ petition No. 14.
The petitioners in the several petitions have challenged the 'validity of a number of provisions of the enactments in question and, in some cases, also of the rules made thereunder.
The impugned provisions are similar in nature, but are not exactly the same.
Therefore, we shall first state in general terms the case of the petitioners and then consider in detail and separately the impugned provisions in each case.
But before we do so, it is necessary to refer to some background history of the legislation under consideration in these cases.
In the year 1958 this Court had to consider the validity of certain provisions of three Acts: (1) The Bihar Preservation and Improvement of Animals Act, (Bihar Act II of 1956); (2) the Uttar Pradesh Prevention of Cow Slaughter Act, 1955 (U. P. Act 1 of 1956); and (3) the Central Provinces and Berar Animal Preservation Act, 1949 (C. P. and Berar Act LII of 1949).
The Bihar Act put a total ban on the slaughter of all 613 categories of animals of the species of bovine cattle.
The U. P. Act put a total ban on the slaughter of cows and her progeny which included bulls, bullocks, heifers and calves.
The C. P. and Berar Act placed a total ban on the slaughter of cows, male or female calves of cows, bulls, bullocks, and heifers, and the slaughter of buffaloes (male or female, adults or calves) was permitted only under a certificate granted by the proper authorities.
These three Acts were enacted in pursuance of the directive principle of State policy contained in article 48 of the Constitution.
The petitioners who challenged the various provisions of the aforesaid Acts in 1958 were engaged in the butcher 's trade and its subsidiary undertakings; they challenged the constitutional validity of the Acts on the ground that they infringed their fundamental rights under articles 14, 19(1)(f) and (g) of the Constitution.
In the decision which this Court gave in Mohd. Hanif Quareshi vs The State, of Bihar (1), it held (i) that a total ban on the slaughter of cows of all ages and calves of cows and of she buffaloes, male or female, was quite reasonable and valid; (ii) that a total ban on the slaughter of she buffaloes or breeding bulls, or working bullocks (cattle as well as buffaloes) so long as they were capable of being used as milch or draught cattle was also reasonable and valid; and (iii) that a total ban on slaughter of she buffaloes, bulls and bullocks (cattle or buffalo) after they ceased to be capable of yielding milk or of breeding or working as draught animals was not in the interests of the general public and was invalid.
In the result this Court directed the respondent States not to enforce their respective Acts in so far as they were declared void by it.
This led to some amending or new legislation, and we are concerned in these three cases with the provisions of these amending or new Acts and the rules made thereunder.
In Bihar (Writ Petition No. 15 of 1959) the impugned Act is called the Bihar Preservation and Improvement of Animals (1) ; 78 614 (Amendment) Act, 1959 which received the assent of the Governor on January 13, 1959.
in Uttar Pradesh (Writ Petition No. 21 of 1959) the impugned Act is called the Uttar Pradesh Prevention of Cow Slaughter (Amendment) Act, 1958 and in Madhya Pradesh (Writ Petition No ' 14 of 1960) a new Act was passed called the Madhya Pradesh Agricultural Cattle Preservation Act, 1959 (Act 18 of 1959) which received the assent of the President on July 24, 1959 and came into force on January 15, 1960.
The rules made there under are called the Madhya Pradesh Agricultural Cattle Preservation Rules, 1959.
The general case of the petitioners, who are several in number in each of the three cases, is that they are citizens of India and carry on their profession and trade of butchers; they allege that the various provisions of the impugned legislation infringe their fundamental rights in that they, for all practical purposes, have put a total ban on the slaughter of she buffaloes, bulls or bullocks, even after such animals have ceased to be useful, and have virtually put an end to their profession and trade.
It is pointed out that the age up to which the animals referred to above cannot be slaughtered (20 or 25 years) has been put so high that the practical effect is that no animals can be slaughtered, and the amending or new legislation has put in other restrictions so arbitrary and unreasonable in nature that in effect they amount to a prohibition or destruction of the petitioner 's right to carry on their trade and profession.
The following allegations quoted from one of the petitions (Writ Petition No. 15 of 1959) give a general idea of the nature of the case which the petitioners have put forward: "That there is good professional authority for the view that even in countries where animal husbandry is organised on a highly progressive and scientific basis, cattle seldom live beyond 15 or 16 years.
That there is also good authority to the effect that even pedigree breeding bulls are usually discarded at the age of 12 or 14 years.
, That in India bulls and bullocks and she buffaloes rarely live even up to the age of 15 years; draught bullocks begin to age after eight years, 615 That the raising of the age limit from 15 to 20 years is arbitrary, unreasonable and against the general public interests and is repugnant to and infringes the, fundamental rights of the, petitioners under Article 19 (1)(f) and (g) of the Constitution.
That section 3 of the amending Act is a mala fide, colourable exercise of power, repugnant to the fundamental rights of the petitioners under Article 19 (1)(f) and (g).
That this arbitrary raising of the age limit will be against the public interests For the following among ' other reasons: (i) That there will, in fact, be no bulls or bullocks or she buffaloes available for slaughter as few, if any, of such animals survive in India up to the age of 15 years; (ii) that the profession, trade and occupation of millions of Muslims will be permanently and irreparably injured; (iii) that millions of members of the minority communities such as Christians, Scheduled Castes, Scheduled Tribes and Muslims, for whom cattle beef is a staple item of their diet, will be deprived of this diet; (iv) that the menace of the rapidly increasing uneconomic cattle population in such matters as the destruction of crops, being a public nuisance, will be accentuated by this arbitrary age limit, and in effect will ensure that bulls and bullocks cannot be slaughtered; (v) that the menace of the rapidly increasing population of uneconomic cattle to the fodder and other animal food resources of the country will be accentuated.
(vi) that the competition between the rapidly increasing cattle population, a large percentage I of which is uneconomic and useless, add the human population for available land will be accentuated; (vii) that this piece of legislation will ensure the steady increase of useless bulls and bullocks and must react disastrously against any attempt to improve milk production, bullock power or animal husbandry generally." 616 Similar allegations have been made in the other two petitions also.
The correctness of these allegations has been con.
tested on behalf of the respondent States, which through some of their officers have filed affidavits in reply.
We shall presently examine at greater length the averments made in these affidavits, but we may indicate here in broad outline what their general effect is.
In Bihar the age below which the slaughter of she buffaloes, bulls and bullocks is prohibited is 25 years.
The respondent State has taken the plea that the usefulness or longevity of live stock for breeding and other purposes depends to a very great extent on (a) better animal husbandry facilities like feeding and management and (b) control of animal diseases, and as these facilities are now available in a greater measure, the legislature came to the conclusion that a bull or bullock or a she buffalo below 25 years of age continues to remain useful; if a bull, bullock or shebuffalo is permanently incapacitated below that age the impugned provision permits its slaughter and therefore the legislation which is challenged conforms to the decision of this Court and does not violate any fundamental right.
In Uttar Pradesh the age is 20 years as respects bulls or bullocks, with a further restriction to be referred to later.
The reply of the res pondent State is that bulls or bullocks do not become unfit at the age of 12 or 14 years as alleged by the petitioners; on the contrary, they continue to be useful and at no time they become entirely useless.
It is then stated in the affidavit: "As a matter of fact, the age up to which the animals can live and are serviceable depends upon the care and attention they receive and the quality of the grass on which they are grazed. . . . . .According to a high authority the average age of an ox under favourable conditions would be between 15 to 20 years.
Even under conditions prevailing in Uttar Pradesh, bulls can live upto 20 years or more as would appear from an analysis of a survey report of the animal husbandry department.
" 617 On these averments the respondent State contends that the legislation is valid.
In Madhya Pradesh also the age is 20 years.
The Under Secretary to the( State Government in the Agricultural Department ' has made the reply affidavit in which it has been stated inter alia that conditions in Madhya Pradesh are different from conditions in other States.
The affidavit then states: "The State of Madhya Pradesh has a total area of 107,589,000 acres, out of which total cropped area is 43,572,000 acres.
Forest area is 33,443,000 acres, area not available for cultivation is 11,555,000 acres, uncultivated land is 18,405,000 acres and fallow land is 5,834,000 acres.
It will thus be seen that this State has a large forest area and plenty of grass land for pasturage.
As the forests supply the greater part of the fuel needs of the human population, the dung of animals is largely available as manure.
The legislature considered that bulls, bullocks and buffaloes are useful in this State till they are well past twenty years of age and that they should not be slaughtered till they are past that age and are also unfit for work or breeding.
The problem of animals dying of slow starvation or of worthless animals depriving useful animals of fodder needs no consideration in this State.
The agricultural community in the State benefits by the existence of animals as long as they are useful.
" There are also further averments as to the shortage of breeding bulls, working bullocks and she buffaloes in Madhya Pradesh.
On these averments the contention of the respondent State is that the cattle in that State are useful up to the age of 20 years.
We have indicated above in general terms the case of the petitioners and the reply which the respondent States have given.
We proceed now to a detailed consideration of the impugned legislation in each case.
(1) We take up first the Bihar Preservation and Improvement of Animals (Amendment) Act, 1959 and the rules made under the main Act of 1955.
Section 3 of the Act as amended reads: "section 3.
[/INST]In Mohd. Hanif Quareshi vs The State of Bihar the Supreme Court held that a total ban on the slaughter of bulls, bullocks and she buffaloes after they had ceased to be useful was not in the interests of the general public and was invalid.
Thereafter, the Bihar Legislature passed the Bihar Preservation and Improvement of Animals (Amendment) Act, 1958, the Uttar Pradesh Legislature passed the U. P. Prevention of Cow Slaughter (Amendment) Act, 1958 and the Madhya Pradesh Legislature passed a new Act, the M. P. Agricultural Cattle Preservation Act, 1959.
Section 3 of the Bihar Act prohibited the slaughter of a bull, bullock or she buffalo except when it was over 25 years of age and had become useless.
Rule 3 of the Bihar Preservation and Improvement of Animals Rules, 1960 prescribed that the certificate for slaughtering an animal could be granted only with the concurrence of the Veterinary Officer and the Chairman or Chief Officer of a District Board, Municipality etc., and if the two differed, then according to the decision of the Sub Divisional Animal Husbandary Officer.
Section 3 of the U. P. Act permitted the slaughter of a bull or bullock only if it was over 20 years of age and was permanently unfit.
It further provided that the animal could not be slaughtered within 20 days of the grant of 'a certificate that it was fit to be slaughtered and gave a right of appeal to any person aggrieved by the order granting the certificate.
Section 4(1)(b) of the Madhya Pradesh Act provided that no bull, bullock or buffallo could be slaughtered except upon a certificate issued by the competent authority and section 4(2)(a) provided that no certificate could be issued unless the animal was over 20 years of age and was unfit for work or breeding.
Section 4(3) gave a right of appeal to any person aggrieved by the order of the competent authority.
Section 5 provided that no animal 611 shall be slaughtered within 10 days of the date of the issue of the certificate and where an appeal was preferred against the grant of the certificate, till the time such appeal was disposed of.
The petitioners, who carried on the profession and trade of butchers, contended that the various provisions of the three Acts set out above infringed their fundamental rights by practically putting a total ban on the slaughter of bulls, bullocks and she buffaloes even after the animal had ceased to be useful and thus virtually put an end to their profession and trade.
Held, (i) that the ban on the slaughter of bulls, bullocks and she buffaloes below the age of 20 or 25 years was not a reasonable restriction in the interests of the general public and was void.
A bull, bullock or buffalo did not remain useful after 15 years, and whatever little use it may have then was greatly offset by the economic disadvantages of feeding and maintaining unserviceable cattle.
The additional condition that the animal must, apart from being above 20 or 25 years of age, also be unfit was a further unreasonable restriction.
Section 3 of the Bihar Act, section 3 of the U. P. Act and section 4(2)(a) of the M. P. Act were invalid.
(ii) Rule 3 of the Bihar Rules was bad as it imposed dis proportionate restrictions on the rights of the petitioners.
The procedure involved such expenditure of money and time as made the obtaining of the certificate not worthwhile.
(iii) The provisions in the Uttar Pradesh and Madhya Pradesh Acts providing that the animal shall not be slaughtered within 20 and10 days respectively of the issue of the certificate and that any person aggrieved by the order of the competent authority, may appeal against it, were likely to hold up the slaughter of the animal for a long time and practically put a total ban on slaughter of bulls, bullocks and buffaloes even after they had ceased to be useful.
These provisions imposed unreasonable restrictions on the fundamental rights of the petitioners and were void.
Mohd. Hanif Quareshi vs The State of Bihar, [1959] S.C.R. 629, State of Madras vs V. G. Row, ; and The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga, , referred to.
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<s>[INST] Summarize the judgementpt Petition Nos. 130 & 195 of 1991.
IN Civil Appeal No. 2054 of 1990 From the Judgment and Order dated 23.1.87 of the Central Administrative Tribunal, Calcutta in T.A. No. 1263/86.
G.S. Chatterjee and Avijit Bhattacharjee for the Appellants.
Dr. Anand Prakash, P. Narasimhan for B.K. Prasad, for the Respondents.
The Judgment of the Court was delivered by R.M. SAHAI, J.
Why the appellants should have been forced to file these contempt applications for enforcement of the order passed by this Court as far back as on 30th April 1990 in Civil Appeal No.2054 of 1990, is not without reason.
Grievance of the applicants is that despite clear findings recorded by this Court, opposite parties are going back on it and persisting in the implementation of the order in a manner which frustrates the entire purpose for which the applicants approached this Court and is a clear violation of directions of this Court issued on 30th April 1990.
Entire dispute centered round the practice of exercising option by Assistant Station Masters who were recruited directly.
Were they left any choice in the matter or was it compulsory.
It was held by this Court, that various letters issued made it clear that the option had to be exercised at the time of appointment and where no option was exercised it was deemed to have been exercised.
This Court found that the applicants were those persons who had to exercise option at the time of appointment and their options were irrevocable.
Effect of this was that they had 758 to wait till 1983 when restructuring was done.
The Court further found that the cadre of Assistant Station Master/Station Master in South Eastern Railway was separate and not combined.
But the Chief Personnel Officer applied alternative1, which under restructuring was to be applied to a zone where combined cadre was in vogue, as it was acceptable to leaders of the Union and was beneficial to large number of employees.
The Court therefore did not interfere with implementation of the alternatives, but protected the interest of the applicants by holding thus "But both the employees unions have accepted the implementation of the letter of Chief Personal Officer as it is beneficial to a majority of the employees.
Therefore, it may not be disturbed.
At the same time all those 204 employees who had opted before 1983 must be entitled to the benefit which would have been available to them on their options.
" What remained thereafter, which could not be clear to opposite parties, cannot be appreciated.
The order left no ambiguity that these employees shall be treated separately and would be granted benefit which would have been available to them.
That was possible and obvious if alternative 11 was applied to them.
It was for this reason that the Court directed to create even additional posts.
Attempt was made by the learned senior counsel to urge that it shall disturb seniority and may result in extending it to many others.
We are afraid that this Court in these applications is concerned with the implementation of the order passed by it and not whether the order passed by it was correct or not.
Neither of these submissions were raised earlier and if had been raised, they should be deemed to have been rejected.
Even earlier it had been made clear that no one promoted shall be disturbed.
We, therefore, direct opposite parties to implement the order of this Court in respect of 204/206 employees by applying altemative II to them for purposes of determining their placement and promotion.
After their placements and promotions are so determined under alternative II then they may be governed by the present alternative for future promotions.
Six months ' time was granted in 1990.
The opposite parties have delayed it by nearly two and half years.
We direct the opposite parties to finalise it within two months from today.
The promotions and all benefits shall be given retrospectively.
No application for further extension by opposite parties shall be entertained.
Failure to comply with the directions shall not be treated lightly in future.
759 We are not taking any action in the circumstances for the present.
The contempt applications are disposed of accordingly.
But the respondents shall pay a sum of Rs. 5,000 as costs to the applicants.
U.R. Contempt Petition disposed of.
[/INST]The dispute was about whether the exercise of option by Assistant Station Masters, directly recruited, was a matter of choice or was compulsory.
The order of this court of 30 April 1990 inter alia protected the interests of the applicants by holding that the 204/206 employees who had opted before 1983 must be entitled to the benefit which would have been available to them on their options.
The order was not implemented.
It was argued for the condemner that the order of this court would disturb seniority and may result in extending it to many others.
Disposing of the contempt petition, this court, HELD : 1.
The order dt.
30.4.90 left no ambiguity that these employees shall be treated separately and would he granted the benefit that would have been available to them.
(758 D) 2.
The Court in contempt applications is concerned with the implementation of an order passed by it, and not whether such order is correct or not.
3.Neither the submission regarding seniority, nor that it may extend to others was raised earlier, and if raised, they should be deemed to have been rejected.
Even earlier it had been made dear that no one promoted shall be disturbed.
(758 F) 757 4.Within 2 months, alternative 11 to be applied to 204/206 employees for their placement and promotion.
Future promotions may be governed by the present alternative.
Promotions and all benefits shall be given retrospectively.
(758 H) Cost to the applicants of Rs. 5,000
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<s>[INST] Summarize the judgementil Appeal No. 71 of 1972.
(From the Judgment and Order dated the 18th December, 1964 the Calcutta High Court in Matter No. 199/61).
T.A. Ramachandran and D.N. Gupta, for the appellant.
B.B. Ahuja and R.N. Sachthey, for respondent.
The Judgment of the Court was delivered by KHANNA, J.
This appeal on certificate is against the judgment of the Calcutta High Court whereby the High Court answered the following question referred to it under section 27 of the Wealth Tax Act in favour of the revenue and against the assessee appellant: "Whether on the facts and in the circum stances of the case, the provision of Rs.49,19,520/ made by the assessee for its tax liability less the amount of the last instalment of advance tax constituted a debt owed by the assessee within the meaning of clause (m) of section 2 of the Wealth Tax Act on the relevant valuation date ?" The matter relates to the assessment year 1958 59, the relevant valuation date for which was December 31, 1957.
A sum of Rs.49,19,520/ was provided for in the books of the appellant for the dis 3 1546 SCI/76 296 charge of its tax liabilities.
The appellant claimed the amount as a deduction in the computation of the net wealth.
The claim was disallowed by the wealth tax officer, the Appellate Assistant Commissioner of Wealth Tax and the Tribunal.
On an application filed by the appellant, the Tribunal referred the question reproduced above to the High Court.
The High Court, while answering the question in favour of the revenue and against the assessee appellant, relied upon its earlier decision in the case of Assam Oil Co. Ltd. vs Commissioner of Wealth Tax, Central Calcutta(1).
The decision in the case of Assam Oil Co, Ltd. relied upon by the High Court was reversed on appeal by this Court.
Naturally therefore at the hearing of the appeal, Mr. Rama chandran, learned counsel for the appellant, has drawn our attention to that decision of this Court in the case of Assam Oil Co. vs Commissioner of Wealth Tax, Central Calcut ta(2).
It was held in that case by majority that the amount set apart by the appellant company in its balance sheet as on December 31, 1956 as an estimated provision for meeting its tax liability, less the last instalment of the demand of the advance tax, was a debt owed by the appellant company on December 31, 1956, the relevant valuation date, within the meaning of section 2(m) of the Wealth Tax Act, 1957, and was deductible in computing its net wealth as on that date.
Following that decision, we are of the view that the answer to the question referred by the Tribunal to the High Court should be in the affirmative in favour of the assessee appellant and against the revenue.
Mr. Ahuja submits that the view taken by the majority in the case of Assam Oil Co. Ltd. needs reconsideration.
This Bench, however, is bound by that decision.
Following that decision, we accept the appeal, set aside the judgment of the High Court and answer the question referred by the Tribunal in the affirmative in favour of the assessee appellant and against the revenue.
The parties in the circumstances shall bear their own costs of this Court as well as of the High Court.
P.H.P. Appeal allowed.
[/INST]On the 29th of December, 1947, petitioner No. 1 executed a lease to C (a company) of certain properties consisting of lands and buildings comprised in the estate belonging to him.
Subsequently, in 1949 he executed a deed of settlement whereby he transferred the properties to three trustees, namely, himself and petitioners 2 and 3.
Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950) came into force on the 25th of September, 1950, and on the 3rd of November, 1951, the State of Bihar issued a notification under section 3(1) of the Act declaring that the estate of petitioner No. 1 had passed to and become vested in the State.
A notice under section 4(h) of the Act was issued by the Collector to C and on the 4th of March, 1954, the State Government issued a notification under s.3(1) purporting to vest in the State the properties in question.
It was contended for the petitioners that the buildings standing on the land comprised in the notified estate did not vest in the State, on the ground (1) that the estate of the petitioner No. 1 did not vest in the State under section 3 of the Act but by virtue of the provisions of section 4, (2) that the definition of "estate" in the Act speaks of land only and not of any building on it, (3) that on the date of vesting, the buildings were not used as office or cutchery for the collection of rent of the notified estate within the meaning of section 4(a), and (4) that section 4(h) is ultra vires the Constitution as it imposes an unreasonable restriction on the fundamental right of the petitioners to realise rent from the company.
Held, that (1) whether the estate of petitioner No. I vested in the State by reason of the publication of the notification under section 3 or by virtue of the provisions of section 4 was of little consequence as in either case a vesting took place; (2) although in the definition of "estate" the word land is used and there is no mention of the word building, the provisions of sections 4, 5 and 7 show the intention of the legislature to include some 989 thing more than merely the land of a notified estate as vesting in the State.
Under section 4(a), buildings of a certain description and other things vest in the State absolutely on the publication of a notification under section 3.
Under sections 5 and 7, the buildings mentioned therein are deemed to be settled by the State with the intermediary and this could only be an the supposition that the buildings vested in the State, the intermediary being a settlee under the State; (3) sections 4(a) and 4(h) must be read together.
Under section 4(h), the use to which the building was put previous to its transfer after the first day of January, 1946, and not thereafter was what the Collector was concerned with and not to what use it had been put after its transfer after the first day of January, 1946.
If a transfer was made after the first day of January, 1946 of a building comprised in the notified estate which was used immediately previous to the date of transfer primarily as office or cutchery for the collection of rent of such estate the transfer would be liable to be annulled under section 4(h) and the building would vest absolutely in the State on the publication of the notification and the provisions of section 4(a) must be read accordingly; and (4) the Collector 's powers under section 4(h), wide as they are, are not quite so absolute or arbitrary as suggested.
section 4(h) is a part of a validly enacted law of acquisition of estates and is an integral part of the machinery by which acquisition of an estate takes place.
The Act or section 4(h) of it imposing any unreasonable restriction on the fundamental right of the petitioners, therefore, does not &rise.
The Act including section 4(h) of it, is protected by article 31 A of the Constitution.
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<s>[INST] Summarize the judgementition No. 84 of 1975.
Petition under article 32 of the Constitution of India.
A. k. Sell, D. N. Mukherjee, Narayan Gupta and C. section Chatterjee, for the petitioner.
Girish Chandra, for respondent No. 1.
D.P. Uniyal and O. P. Rana, for respondent nos.
The Judgment of the Court was delivered by FAZAL ALI, J.
By an order dated November 8, 1974 passed by the District Magistrate, Badaun, the petitioner was detained under section 3(1)(a)(iii) of the hereinafter referred to as 'the Act ' because the allegations made in the grounds of detention disclosed that he had committed acts prejudicial to the maintenance of supplies and services essential to the community.
The grounds of the order of detention were served on the petitioner by the District Magistrate, Badaun, on November 13, 1974.
The State Government approved the order of detention on 18 November 19, 1974 and made a report to the Government of India on November 22, 1974.
According to the respondents, the Government of U.P. had made a reference to the Advisory Board constituted under the Act on November 22, 1974 but as it had not received The representation from the petitioner, the same was forwarded later.
The representation, according to the respondents, was received on November 28, 1974 which was rejected on December 6, 1974.
The representation was sent to the Advisory Board on December 18" 1974 which gave 13 its report holding that the grounds were sufficient for detention of the petitioner and after receipt of the opinion of the Advisory Board on January 7, 1975 the order of detention was finally confirmed by the Government on January 17, 1975.
We might mention at the very outset that there was some controversy on two points before us.
In the first place the petitioner did not accept the stand of the Government that the reference to the Advisory Board was made on November 22, 1974 but relied on a counter affidavit filed by Mr. section K. D. Mathur, the then District Magistrate of Badaun, in this Court to support his plea that the reference to the Advisory Board was made on December 20, 1974 vide paragraph 2(vi) of the counter affidavit appearing at p. 118 the Paper Book.
It was therefore contended by the learned counsel for the petitioner that as the reference was made to the Advisory Board beyond the period mentioned in section 10 of the Act, there being a violation of the mandatory provision of the statute, the order of detention fell on this ground alone.
We gave an opportunity to the Government to produce before us materials to show the exact position and from the original file produced before us we find that the counter affidavit filed by Mr. section K. D. Mathur in this court to the effect that the reference was made to the Advisory Board on December 20, 1974 was factually incorrect and that the reference was really made on November 22, 1974 by the Government by virtue of letter No. 107/2/48/74.
The file also contains a letter of the Registrar dated January 7, 1975 forwarding the opinion of the Advisory Board wherein also it was mentioned that the reference was made on November 22, 1974.
In view of these cogent materials Mr. Sen learned counsel for the petitioner did not choose to press this point.
We cannot, however.
Leave this matter without expressing our strong disapprobation on the careless and irresponsible manner in which the counter affidavit has been filed by the respondents, particularly by Mr. section K. D. Mathur who happened to be the then District Magistrate, Badaun.
We hope the Government will be careful in future and see that such incorrect affidavit are not filed before this Court, which may create unnecessary confusion and controversy and make a simple issue so very much involved.
The petitioner was admittedly a partner of the firm called Bharat Oil Company which was dealing in the storage and sale of high speed diesel oil since 1965.
According to the petitioner the business was started at Badaun and Ujhani but later a branch was opened at Bareilly and the firm transferred its headquarters to Bareilly in 1971.
We are not, however, concerned with the business at 19 Bareilly in this case.
Under the , the petitioner could have carried on his business only after obtaining a licence from the prescribed authority.
The District Authorities could grant licence only to the extent of 22,000 liters but if the dealer wanted to store high diesel oil to the extent of more than 22,000 litres he had to get a licence from the Chief Controller of Explosives, Nagpur.
The petitioner 's further case is that as high speed diesel oil ran in short supply, the Indian oil Corporation and the District authorities impressed on the dealers the necessity of keeping light diesel oil which was available in sufficient quantities and was necessary for running, crushers and pumps in the rural areas.
The petitioner had undoubtedly secured a licence for storage of li ht diesel oil which was valid upto March 31, 1975 and had applied for renewal of the licence thereafter and had also complied with all the necessary formalities about no objection and the safety certificate to be given by the District Authorities.
But on the date in question the licence of the petitioner had not been renewed so far.
We might intention in this connection that the stand taken by the respondents is that although the petitioner had a licence to stole light diesel oil to the extent of 22,000 litres he did not possess any licence for storing it at Ujhani.
It appears that the godown of the petitioner was searched by the excise authorities on October 17, 1974 and November 5, 1974 and in inspection of the godown about 1.64 lakhs litres of light diesel oil was found stored it Ujhani.
The stock register was produced by the petitioner before the authorities which appeared to be in order and there is no allegation that there was any manipulation or interpolation in the stock register Thus the simple allegation against the petitioner is that he had stocked huge quantity of light diesel oil without waiting for the licence to be cleared by the Chief Controller of Explosives at Nagpur This forms the subject matter of the allegations mentioned in grounds (1)(a) & (b) of the grounds of detention served on the petitioner.
The sheet anchor of the argument of Mr. Sen learned counsel for the petitioner was that in so far as ground No (1) was concerned it was wholly irrelevant and totally unconnected with the nexus of the Act, because even if the grounds be taken at their face value they did not disrupt or disturb the essential supplies to the community.
Before dealing with this contention it may be necessary to quote in extenso the grounds mentioned in (1)(a) & (b) of the detention order: "(1) That you a partner in the firm named Bharat oil Company, Mohalla Ayodhya Nagar, Ujhani District Badaun, on Bareilly Mathura Road, authorised only to deal in High Speed Diesel and Motor Spirit were found hoarding Light Diesel oil, without having obtained a licence for the same from the Chief controller of Explosives, Nagpur as is evident from the following: (a) On 17 10 74 at about 4 P.M. the premises of your aforesaid firm was inspected by Sri section N. Pandey, District Excise officer, Badaun and it was found that in the underground tanks within the premises mentioned aforesaid 96,000 litres of Light 20 Diesel oil was stored, for which no licence could be produced on demand by the District Excise officer aforesaid and thereafter a complaint has also been lodged in the court of the Chief Judicial Magistrate, Badaun by the District Excise officer on 8 11 74 (b) On 5 11 74 the premises of your aforesaid firm Bharat oil Company, Ujhani, was again inspected at about 4.15 P.M. by Sri N. N. Verma S.D.M. Badaun accompanied by District Excise officer Badaun and Sri Fateh Singh, Dy.
S.P. Badaun and it was found that 68,000) litres of Light Diesel oil had during 7th October 1974 to the time of this inspection been added to the store kept by you of the said Light Diesel oil of 96,000 litres, in three underground tanks within the premises mentioned aforesaid and no licence could be produced on demand by the S.D.M. Badaun.
For this also, a complaint has been lodged by the S.D.M. Badaun in the Court of Judicial Magistrate II Badaun on 8 11 74.
" Analysing these grounds it would appear that there is no allegation by the detaining authority that by storing the huge quantity of light diesel oil the petitioner had in any way affected the distribution or sale of that commodity, nor is there any allegation to show that the petition had refused to sell light diesel oil to any body who required it.
The High Court which was moved in the first instance for a writ of habeas corpus, appears to have drawn an inference based purely on speculation that the petitioner had transferred huge quantities of light diesel oil from his depot at Badaun to his godown at Ujhani.
There is, however, no material on the basis of which the High Court could have drawn such an inference.
There is, however, no suggestion.
far less any allegation, in these grounds that the petitioner had tried to divert his stocks of light diesel oil from Badaun to Ujhani and thereby deprived the people of Badaun of their share of the light diesel oil.
In these circumstances, therefore, we arc satisfied that there is absolutely no correlation between the act of the petitioner and the disruption of distribution of the essential supplies to the community.
The learned counsel appearing for the respondents submitted that by storing such huge quantities of light diesel oil in Ujhani the petitioner has committed a clear violation of the mandatory provisions of the and the Rules made thereunder and must be presumed to have disrupted the essential supplies because light diesel oil had been declared by the order of the Government of U.P. to be an essential commodity.
We are, however, unable to agree with this argument.
Mr. Sen appearing for the petitioner does not dispute that the light diesel oil was an essential commodity, but his argument was that he has in no way tried to disrupt the essential supplies of this commodity and he merely committed a technical offence in storing the quantities of light diesel oil in anticipation of the licence which had been cleared by the District Authorities and which awaited the 21 sanction of the Chief Controller of Explosives, Nagpur and which would have in normal routine been granted.
It is also admitted in the ground itself that a complaint had been lodged in the Court of the Chief Judicial Magistrate against the petitioner for the storage.
We have already held in several cases that the commission of an offence at a private place or a violation of a provision of law by itself does not attract the Act unless by the act committed by the petitioner the essential supplies to the community are disrupted or even flow of the life of the community is disrupted.
Reading grounds (1)(a) & (b) we are unable to hold that they are in any way germane or relevant to the disruption of maintenance of essential supplies to the community.
In Manu Bhusan Roy Prodhan vs State of West Bengal and others(1) this Court observed as follows: "This kind of a solitary assault on one individual, which may well be equated with an ordinary murder which is not an uncommon occurrence, can hardly be said to disturb public peace or place public order in jeopardy, so as to bring the case within the purview of the Act.
It can only raise a law and order problem and no more; its impact on the society as a whole cannot be considered to be so extensive, widespread and forceful as to disturb the normal life of the community thereby rudely shaking the balanced tempo of the orderly life of the general public.
This ground is, therefore, not at all relevant for sustaining the order of detention for preventing the petitioner from acting in a manner prejudicial to the maintenance of public order.
The ratio of this case fully tallies with the facts of the present case where also grounds (1) (a) & (b) taken at their face value appear to be irrelevant and do not disclose any causal connection with the disruption of the essential supplies to the community.
We now take up the other ground, namely, ground No. (2), which is as follows: "(2) That you as partner of the firm M/s Bharat oil Company located at Badaun licensed at Badaun to deal with Light Diesel oil and required by rule 9(1) of the U.P. Essential Commodities (Price Display and Control of Supply and Distribution) order, 1971.
as amended by Second Amendment dated ' June 13, 1973 framed under Rule 114(2) of the Defence of India Rules, 1971 to issue every purchaser a correct receipt showing, inter alia, the name and address of the customer were found to have sold Light Diesel Oil repeatedly without complying with the said requirement and with the object make fictitious sale of the 22 Light Diesel Oil a scheduled commodity within the meaning of the said order, as is evident from the following: (i) Cash memo No. 62 dated 8 8 74 | | (ii) Cash memo no, 63 dated 14 8 74 | | (iii)Cash memo no 134 dated 7 10 74 | Name and address | of the customer (iv) Cash memo no, 135 dated 7 10 74| not given" | (v) Cash memo No. 145 dated 7 11 74| | (vi) Cash memo No. 146 dated 7 11 74| This ground no doubt discloses a clear overt act on the part of the petitioner from which an inference can be drawn that the petitioner had made a number of fictitious sales.
The details of the cash memos by which the sales had been made have also been given but the cash memos do not disclose the names and addresses of the customers, as required by the rules.
The petitioner has himself admitted in paragraph 13 of his petition filed in this Court that there had been a violation of the U.P. Sale of Motor Spirit Taxation Act and the Rules made thereunder but he sought to explain the omission on the ground that it was due to the mistake of the Munim and the quantities alleged to have been sold were actually purchased by the petitioner himself for the use of the pumps in his own agricultural farm.
This explanation does not appear to be convincing at all.
From the file produced before us by the respondents it appears that the total amount of sale of light diesel oil under these cash memos mentioned in the ground comes to 21 ,000 litres.
We find it impossible to believe that the petitioner would consume such huge quantity of light diesel oil for his personal agricultural farms particularly when the petitioner had given no details of the number of farms and other machines for which this oil was said to be used.
In these circumstances there can be no doubt that these were fictitious sales made by the petitioner with a view to hoard light diesel oil and by his conduct the persons who were in genuine need of light diesel oil were deprived of the same.
Ground No. (2), therefore is quite specific, but the difficulty is that in view of our finding that ground No. (1) is irrelevant it is not possible to determine as to what extent the subjective satisfaction of the detaining authority was influenced or affected by Ground No. (1) which has been found by us to be extraneous and irrelevant.
It has been held by us in several cases that where out of two grounds one ground is vague or irrelevant, then the entire order of detention falls to the ground.
In this view of the matter the order of detention suffers from this serious infirmity and must be quashed.
Secondly it was argued by the learned counsel for the petitioner that on the materials produced before us the subjective satisfaction of the detaining authority has also not been established.
To begin with it is not clear at all as to who passed the order of detention and who was satisfied regarding the sufficiency of the grounds.
In the second place the grounds appear to have been served by Mr. R. C. Arora the permanent District Magistrate of Badaun who has also signed the same which shows that he was the detaining 23 authority also.
On a consideration of these two points we are of the opinion that the contention of the learned counsel for the petitioner is well founded and must prevail.
Coming to the first point we find that Mr. section K. D. Mathur has clearly alleged in his counter affidavit that Mr. R. C. Arora the permanent District Magistrate of Badaun had proceeded on leave from October 21, 1974 to November 11, 1974 and during his absence the deponent section K. D. Mathur was acting as the District Magistrate of Badaun.
It is further stated in the affidavit that Mr. R. C. Arora rejoined his duty in November 12, 1974 and took charge of his office.
The order of detention, however, appears to have been passed while Mr. section K. D. Mathur was officiating as District Magistrate of Badaun and Mr. Mathur makes no secret of the fact that the order of detention was passed by him after being satisfied of the grounds of detention.
In the counter affidavit submitted by Mr. section K. D. Mathur before the High Court, which is Annexure at p. 66 of the Paper Book Mr. Mathur categorically stated that he himself had passed the detention order after recording his satisfaction.
In this connection paragraph 1 of the counter affidavit before the High Court is as follows: That the deponent was District Magistrate, Badaun on 8 11 1974, and he has passed the detention order against the petitioner after being fully satisfied that the petitioner was acting in a manner prejudicial to the maintenance of supplies and services essential to the community and as such he is well acquainted with the facts deposed to below.
" This allegation is reiterated and over emphasised in paragraph 23 of the same affidavit wherein Mr. Mathur makes a categorical averment which is as follows: ". the deponent submits that in his capacity as the District Magistrate he was fully competent to make the impugned order of detention.
The deponent further submits that on the basis of the evidence and the material placed be before him, to which he has referred above he was personally and fully satisfied as to the existence of sufficient basis to make the impugned order with a view to prevent the petitioner from indulging in activities prejudicial to the maintenance of essential services and supplies.
" In this very affidavit Mr. Mathur goes on to state that he had also farmed draft of the grounds on November 8, 1974 and that Shri R. C. Arora who took over on November 12, 1974 served these grounds on the petitioner which were drawn by the deponent Mr. section K. D. Mathur.
In this connection the averment runs as follows: "Sri R. C. Arora took over charge on November 12, 1974 and under his signature Sri Arora served these same grounds which the deponent had earlier drawn upon the petitioner.
" According to the clear and categorical averments made by Mr, section K. D. Mathur in his affidavit before the High Court the only role which was 24 assigned to Mr. R. C. Arora the permanent District Magistrate was A that he signed the grounds and served them on the detenu.
In other words, according to Mr. section K. D. Mathur, Mr. R. C. Arora was merely the serving officer and did not perform any other function in so far as the order of detention passed against the petitioner was concerned and yet this officer is imprudent enough to allege in paragraph 25 of the counter affidavit filed in this Court that the order of detention was passed not only by him but by the two detaining authorities, namely Mr. R. C. Arora and Mr. section K. D. Mathur.
In this connection Mr. Mathur averred as follows.
"That the order of detention was passed by the detaining authorities after they had fully satisfied themselves about the existence of the grounds.
" It would thus appear from this averment that the order of detention was not passed by one single person but by more than one person and taking the facts mentioned by the deponent it would appear that the order of detention appears to have been passed in two stages in he first instance by Mr. section K. D. Mathur who was full fledged District Magistrate on November 8, 1974 when the order of detention was passed, but who according to his own statement had first prepared a draft of the grounds.
The order of detention was then signed by Mr. R. C. Arora on November 13, 1974 and served on the detenu.
While Mr. section K. D. Mathur took the clearest possible stand before the High Court that he alone had made the order of detention and he alone was satisfied about the sufficiency of the grounds, but in his affidavit before this Court he seems to suggest that there were two detaining authorities both of whom were satisfied.
This shows the casual and cavalier manner in which the order of detention against the petitioner appears to have been passed in this case.
Even if the order had been made by Mr. section K. D. Mathur and signed, by him, there could have been no objection in Mr. R. C. Arora serving the grounds on the petitioner, because the law does not require that the person who actually signs the order or the grounds must also serve the same on the detenu.
But in this case it is not possible to determine as to who in fact made the order of detention.
F It is true that the Court cannot go behind the subjective satisfaction of the detaining authority, but such satisfaction does not confer a blanket power which may authorise the detaining authority to act in a ruthless or arbitrary fashion and the judicial decisions have undoubtedly carved out an area, though limited.
within which the subjective satisfaction of the detaining authority can be tested on the touchstone of objectivity.
It is obvious that the subjective satisfaction of the detaining authority is a sine qua non for the exercise of power of detention and it has got to be exercised properly and discreetly.
In Khudiram Das vs The State of West Bengal and others(1) this Court made the following observations: "The basic postulate on which the courts have proceeded is that the subjective satisfaction being a condition precedent for the exercise of the power conferred on the executive, the 25 court can always examine whether the requisite satisfaction is arrived at by the authority; if it is not, the condition precedent dent to the exercise of the power would not be fulfilled and the exercise of the power would be bad." In the instant case, in view of the contradictory stand taken by the detaining authorities, we are satisfied that the exercise of jurisdiction to detain the petitioner has not been made with due care and caution or in a proper and fair manner.
On this ground also the order of detention stands vitiated.
Section 3(1) of the Act runs.
thus: "3.
(1) The Central Government or the State Government may, (a) if satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial to (i) the defence of India, the relation of India with foreign powers, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii)the maintenance of supplies and services essential to the community, or (b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India; It is necessary so to do, make an order directing that such person be detained.
" This power can also be exercised by the officers mentioned in sub section
(2), and in the instant case we are concerned with the District Magistrate.
The words "make an order directing that such person be detained " clearly postulate three conditions (1) that the order must be made by the authority mentioned in section 3; (ii) the order must be duly signed by the said authority; and (iii) that only one authority and one authority alone can pass such order of detention.
The statute does not contemplate a sort of composite or a joint order passed by several authorities.
In the instant case the original order of detention passed by Mr. section K. D. Mathur bears his signature and even the grounds mentioned bear his signature.
In these circumstances we are unable to accept the affidavit of Mr. section K. D. Mathur that the grounds framed by him were merely draft grounds prepared by him which were signed by the permanent District Magistrate later.
It is obvious that unless the order made and the grounds prepared are signed by the authority concerned, the order is not made as contemplated by section 3 of the Act.
Further more, since the order is based on grounds to be served on the detenu, the order of detention could be passed only if the grounds are in existence and are prepared contemporaneously, otherwise the order 26 of detention becomes purely illusory.
In view, however, of the contradictory affidavits given by Mr. section K. D. Mathur, it is difficult to determine whether Mr. section K. D. Mathur or Mr. R. C. Arora passed the order of detention and as to who among them was satisfied regarding the grounds of detention.
This is also a very serious infirmity from which the order of detention suffers and as a result of which the order has to be set aside.
There appears to us to be a clear violation of the provisions of section 3 of the Act in this case.
Lastly we may mention that although the petitioner has pleaded he question of mala fides in the instant case, it is not necessary for us to decide the same in the view we take in this case, and that is why it was not seriously pressed by Mr. Asoke Sen ill the course of his arguments before us.
For the reasons given above, we allow the petition and quash the order of detention passed against the petitioner on November 8, 1974 and direct the petitioner to be released forthwith.
V.P.S. Petition allowed.
[/INST]Section 2 of the Prevention of Corruption Act, 1947, provides that, for the purposes of this Act, "Public servant" means a public servant as defined in section 21 of the Indian Penal Code.
Before the Criminal Law (Amendment) Act, 1958 (Act No. 11 of 1958) was passed adding clause 12 to this section, section 21 of the Penal Code consisted only of eleven clauses and an employee under the Corporation or a Government Company did No. fall within the purview of any of the clauses of section 21 of the Penal Code.
Clause 12 was further amended by the Anti Corruption Laws (Amendment) Act, 1964 (Act No. XL of 1964) enlarging the definition of "public servant".
The respondent who was an employee in the Heavy Electricals (India) Ltd. Bhopal, which is a Government Company, was convected by the Special Judge Indore, under section 420 I.P.C. and section 5(2) read with section 5(1)(d) of the Act and was sentenced to one year rigorous imprisonment on each count.
The appeal filed by the respondent before the High Court of Madhya Pradesh was allowed mainly on the ground that as the respondent was not a public servant as contemplated by the provisions of the Act, his trial under the Act was without jurisdiction.
The High Court took the view that as the Act had incorporated the definition of the Penal Code prior to its amendment, it became an integral and independent part of the Act and would remain unaffected by any repeal or change in the previous Act, namely, the Penal Code.
This appeal has been preferred on the basis of the certificate granted by the High Court.
Allowing the appeal, ^ HELD: (i) It is well settled that, after the provision of the previous Act is incorporated in the subsequent Act, the off spring, namely, the incorporated provisions, survives even if the previous Act is repealed, amended, declared a nullity or erased from the statute book.
But the Act being a social legislation its provisions must be construed liberally so as to advance the object of the Act.
Though the Act and the Penal Code are not statutes in pari materia there can be no doubt that the evidence Act and the Prevention of Corruption Act form part of one system, because the rules of Evidence Act, with minor exceptions, apply to trials of offences created under the Act.
The Act, no doubt, contains a penal flavour but it is in effect a piece of social legislation directed towards eradication of the evil of corruption amongst the services alone.
In other words, the public servants alone fall within the mischief of the Act and no one else.
[11E; 12A C] Clarke vs Bradlaugh, ,69, Ram Sarup vs Munshi and other ; , 868 869, In re Wood 's Estate, Ex parte Her Majesty 's Commissioners of Works and Buildings, [18861 , 615 616, Secretary of State for India in Council vs Hindustan Co operative Insurance Society Ltd. L.R. 58 I.A. 259.
266 267. referred to.
State of Madras vs Vaidyanath Aiyar, A.I.R. 1958 S.C. 61, relied on.
(ii) The object of the Act is to eradicate corruption from various levels either in Government services or in service under the Corporation or Government Companies.
The Penal Code no doubt creates offences like those mentioned in sections 161 and 165 of the Code but they were not found sufficient to cope with the present situation and the expending needs of the nation.
In these circumstances, 7 it was considered necessary to evolve a quick, expeditious and effective machinery to destroy the evil of corruption existing in any form.
If, therefore, the Penal Code with the same object enlarged the definition of section 21 by adding the twelfth clause by virtue, of the Criminal law (Amendment) Act, 1958 and the Anti corruption Laws (Amendment) Act, 1964, there is no reason why the extended meaning to the provision of section 2 of the Act ns borrowed from section 21 of the Penal Code be not given lo that section.
Otherwise the Act would become wholly unworkable.
[12D F] Secretary of State for India in Council vs Hindustan Co operative Insurance Society Ltd. L.R. 58 I.A. 259, 266 267.
section Gangoli vs The State of Uttar Pradesh, [1960] 1 section C. R. 290 and M. Narayanan Nambiar vs State of Kerala, [1963 Supp. 2 S.C.R. 724.
referred to.
(iii) Even if section 2 of the Act had not applied the provisions of the Penal Code and had not defined public servant, then the provisions of the Penal Code would have come into operation by implied reference because the Act was a supplemental Act to the Penal Code.
It was only by way of abundant caution that section 2 of the Act incorporated the definition of "public servant" as mentioned in section 21 of the Penal Code and in that sense alone the Act can be treated as being pari meteria with the Penal Code.
[15A B]
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<s>[INST] Summarize the judgementeal No. XXXIV of 1950.
Appeal by special leave from an Award of the All India Industrial Tribunal (Bank Disputes) Bombay, dated 1st Janu ary, 1950.
The facts of the case are set out in the judg ment.
Dr. Bakshi Tek Chand (Veda Vyas and S.K. Kapur, with him) for the appellant.
B. Sen for the respondents.
Alladi Krishnaswami Aiyar (Jindra Lal, with him) for the Union of India. 1950.
May 26.
The Court delivered judgment as follows : KANIA C.J I have read the judgments prepared by Messrs. Fazl Ali, Mahajan and Mukherjea JJ.
461 in this case.
As the views in those judgments in respect of the nature of the duties and functions of the Industrial Tribunal do not show agreement I consider it necessary to add a few words of my own.
In my opinion, the functions and duties of the Indus trial Tribunal are very much like those of a body discharg ing judicial functions, although it is not a Court.
The rules framed by the Tribunal require evidence to be taken and witnesses to be examined, cross examined and re exam ined.
The Act constituting the Tribunal imposes penalties for incorrect statements made before the Tribunal.
While the powers of the Industrial Tribunal in some respects are different from those of an ordinary civil Court and it has jurisdiction and powers to give reliefs which a civil Court administering the law of the land (for instance, 'ordering the reinstatement of a workman) does not possess in the discharge of its duties it is essentially working as a judicial body.
The fact that its determination has to be followed by an order of the Government which makes the award binding, or that in cases where Government is a party the legislature is permitted to revise the decision, or that the Government is empowered to fix the period.
of the opera tion of the award do not, to my mind, alter the nature and character of the functions of the Tribunal.
Having consid ered all the provisions of the Act it seems to me clear that the Tribunal is discharging functions very near those of a Court, although it is not a Court in the technical sense of the word.
The next question is whether under article 136 the Court has jurisdiction to entertain an application for leave to appeal against the decision of such a body.
It is not dis puted that the Court has power to issue writs of certiorari and prohibition in respect of the work of the Tribunal.
The only question is whether there is a right of appeal also.
In my opinion the wording of article 136 is wide enough to give jurisdiction to the Court to entertain an application for leave to appeal, although it is obvious that having regard to the nature of the functions of the Tribu nal, this Court will be very reluctant to entertain such an application.
462 As regards the merits, I do not think this is a case in which I would admit the appeal.
The aggrieved parties may apply for redress by adopting other appropriate proceedings.
The appeal therefore should be dismissed with costs.
FAZL ALl J.
The important question to be decided in this case is whether the present appeal lies at all to this Court.
The question is not free from difficulty, but on the whole I am inclined to think that 'the appeal does lie.
It is fully recognized that the scope article 136 of the Constitution is very wide, but the significance of the language used in the section can be appreciated only by comparing it with the articles which precede it.
Article 132 deals with the appellate jurisdiction of the Supreme Court in cases involving a substantial question of law as to the interpretation of the Constitution, and the words used in that article are: "appeal. from any judgment, decree or finalorder." Article 133 deals with appeals in civil matters and the same words are used here also.
Arti cle 134 deals with appeals in criminal matters, and the words used in it are: "appeal. from any judgment, final order or sentence." In article 136, the words "judg ment" and "decree," which are used in articles 132 and 133 are retained.
Similarly, the words "judgment" and "sen tence" occurring in article 134 are also retained.
But the expression "final order" becomes "order," and, instead of the High Court, reference is made to "any court.
" Cer tain other words are also used in the article which seem to me to have a special significance, these being "determina tion," "cause or matter" and "tribunal.
" It is obvious that these words greatly widen the scope of article 136.
They show that an appeal will lie also from a determination or order of "any tribunal" in any cause or matter.
Can we then say that an Industrial Tribunal does not fall within the scope of article 136 ? If we go by a mere label, the answer must be in the affirmative.
But we have to look further and see what are the main functions of the Tribunal and how it proceeds to discharge those functions.
This is necessary because 463 I take it to be implied that before an appeal can.
lie to this Court from a tribunal it must perform some kind of judicial function and partake to some extent of the charac ter of a Court.
Now there can be no doubt that the Industrial Tribunal has, to use a well known expression, "all the trappings of a Court" and performs functions which cannot but be regarded as judicial.
This is evident from the rules by which the proceedings before the Tribunal are regulated.
It appears that the proceeding before it commences on an application which in many respects is in the nature of a plaint.
It has the same powers as are vested in a civil Court under the Code of Civil Procedure when trying a suit, in respect of discovery, inspection, granting adjournment, reception of evidence taken on affidavit, enforcing the attendance witnesses, compelling the production of documents, issuing commissions, etc.
It is to be deemed to be a civil Court within the meaning of sections 480 and 482 of the Criminal Procedure Code, 1898.
It may admit and call for evidence at any stage of the proceeding and has the power to administer oaths.
The parties appearing before it have the right of examination, cross examination and re examination and of addressing it after all evidence has been called.
A party may also be represented by a. legal practitioner with its permission.
The matter does not rest there.
The main function of this Tribunal is to adjudicate on industrial disputes which implies that there must be two or more parties before it with conflicting cases, and that it has also to arrive at a conclusion as to how the dispute is to be ended.
Prima facie, therefore, a Tribunal like this cannot be excluded from the scope of article 136, but before any final conclu sion can be expressed on the subject certain contentions which have been put forward on behalf of the respondents have to be disposed of.
The first contention is that the Industrial Tribunal cannot be said to perform a judicial or quasi judicial function.
since it is not required to be guided by any recognized substantive law in deciding disputes 464 which come before it.
On the other hand, in deciding industrial disputes, it has to override contracts and create rights which are opposed to contractual rights.
In these circumstances, it is said that the very questions which arose before the Privy Council in Moses vs
Parker Ex parte Mose (1) arise in this case, these questions being : (1) How can the propriety of the Tribunal 's decision be tested on appeal, and (2) What are the canons by which the appellate Court is to be guided in deciding the appeal ? Their Lordships of the Privy Council undoubtedly felt that these were serious questions, but they had no hesitation in saying that "if it were clear that appeals ought to be allowed.
such difficulties would doubtless be met somehow.
" This, in my opinion, is a sufficient answer to the difficul ty raised.
The Tribunal has to adjudicate in accordance with the provisions of the .
It may sometimes override contracts, but so can a Court which has to administer law according to the Bengal or Bihar Money lenders Act, Encumbered Estates Act and other similar Acts.
The Tribunal has to observe the provisions of the special law which it has to administer though that law may be dif ferent from the law which an ordinary Court of justice administers.
The appellate Court, therefore, can at least see that the rules according to which it has to act and the provisions which are binding upon it are observed, and its powers are not.exercised in an arbitrary or capricious manner.
The second contention, which is a more serious one, is that the adjudication of the Tribunal has not all the at tributes of a judicial decision, because the adjudication cannot bind the parties until it is declared to be binding by the Government under section 15 of the Industrial Dis putes Act.
It is said that the adjudication is really in the nature of an advice or report which is not effective until made so by the Government.
It appears that a similar objection was raised in Rex vs Electricity Commissioner 's, London Electricily ' (1) Joint Committee Co. (1920) Ex Parte (1) for the purpose of deciding whether a writ of certiorari should be Issued in the circumstances of the case but was dis.
posed of in these words : "It is necessary, however, to deal with what i think was the main objection of the Attorney General.
In this case he said the Commissioners come to no decision at all.
They act merely as advisers.
They recommend an order embodying a scheme to the Minister of Transport, who may confirm it with or without nodifications.
Similarly the Minister of Trans port comes to no decision.
He submits the order to the Houses of Parliament, who may approve it with or without modifications.
The Houses of Parliament may put anything into the order they please, whether consistent with the Act of 1919, or not.
Until they have approved, nothing is decided, and in truth the whole procedure, draft scheme, inquiry, order, confirmation, approval, is only part of a process by which Parliament is expressing its will, and at no stage is subject to any control by the Courts.
It is unnecessary to emphasize the constitutional importance of this contention. .
In the provision that the final decision of the Commissioners is not to be operative until it has been approved by the two Houses of Parliament I find nothing inconsistent with the view that in arriving at that decision the Commissioners themselves are to act judicially and within the limits prescribed by Act of Parliament, and that the Courts have power to keep them within those limits.
It is to be noted that it is the order of the Commissioners that eventually takes effect; neither the Minister of Trans port who confirms, nor the Houses of Parliament who approve, can under the statute make an order which in respect.
of the matters in question has any operation.
I know of no author ity which compels me to hold that a proceeding cannot be a judicial proceeding subject to prohibition or certiorari because it is subject to confirmation or approval, even where the approval has to be that of the Houses of Parlia ment.
The authorities are to the contrary. ' ' (1) 466 It is well known that a writ of certiorari can issue only against an order of a judicial or quasi judicial tribu nal and if it is permissible for the High Court to.
issue a writ of certiorari against an Industrial Tribunal, which fact was not seriously disputed before us, I find it diffi cult to hold that the tribunal does not come with in the purview of article 136.
If a subordinate Court acts in excess of its jurisdiction or assumes a jurisdiction which it does not possess, the appellate Court can always interfere and do what is contemplated to be done by a writ of certiorari.
It is to be noted that under section 15 of the , in cases where the appropriate Govern ment is not a party to the dispute, all that the Government has to do on receiving the award of the Tribunal is to declare it to be binding and to state from what date and for what period it will be binding.
Section 15.(2) is mandatory and it provides: "On receipt of such award, the appropriate Government shall by order in writing declare the award to be binding. . " Thus the Government cannot alter, or cancel, or add to the award, but the award must be declared to be binding as it is.
In substance, therefore, the adjudication of the Tribunal amounts to a final determination of the dispute which binds the parties as well as the Government.
Our attention was however drawn to the proviso to section 15 (2), which runs as follows: "Provided that where the appropriate Government is a. party to the dispute and in its opinion it would be inexpe dient on public grounds to give effect to the whole or any part of the award, it shall on the first available opportu nity lay the award together with the statement of its rea sons for not making a declaration as aforesaid before the Legislative Assembly of the Province, or where the appropri ate Government is the Central Government, before the Central Legislative Assembly, and shall, as soon as may be, cause to be moved therein a resolution for the consideration of the 467 award, and the Legislative Assembly may, by its resolution, confirm, modify, or reject the award.
" This proviso was relied upon by the respondents to show that the right to appeal from the award could not have been contemplated in any case.
But the Act itself makes a dis tinction between cases in which the Government is a party and those in which the Government is not a party.
The proviso relates to a very special type of case and as at present advised I do not wish to express any opinion as to whether an appeal lies to this Court or not in such a case, but, in my judgment, where the Government has only to de clare the award to be binding, an appeal shall lie.
It is necessary here to say a few words as to the scope of the appeal.
As was pointed out by this Court in Pritam Singh vs The State(1), the power under article 136 of the Constitution being a special power is to be exercised only in special cases.
The rule so laid down is bound to re strict the scope of the appeal in practice in almost all the cases which fall under article 136.
But in some cases a limitation will be imposed on the scope of the appeal by the very nature of the case and of the tribunal from which an appeal is sought to be brought, and a case under the Indus trial Disputes Act seems to be an example of such a case.
Dealing now with the merits of the appeal, I am not prepared to hold that this is a proper case for interference with the adjudication of the Tribunal.
The power of this Court was invoked by the appellants on four grounds.
These grounds have been elaborately examined by Mahajan J. and two of them have been pronounced to be wholly inadequate for justifying our interference.
My view with regard to these two grounds is identical with that of Mahajan J. and I do not wish to add to what he has already said on the subject.
The remaining two grounds also are, in my opinion, wholly insufficient to justify the exercise of our special power under article 136.
One of these grounds is that the award of the Tribunal is based on no evidence whatsoever.
I do not, however, find that this ground (1) ; 60 468 was urged in this form in the application for special leave to appeal to this Court.
All that was intended to be urged was that the appellants wanted to adduce evidence but were not allowed to do so.
From the decision of the Tribunal however, it appears that the evidence that was shut out related to one isolated point only and the Tribunal might well have been justified in not allowing evidence to be admitted on a point which in its opinion had no direct bearing on the issue before them.
After hearing the re spondents on this particular point, I am not disposed to hold that the Tribunal has committed such an error as would justify the interference of this Court.
The last ground urged is that the award has been signed by only two members of the Tribunal though it originally consisted of three persons and though the entire hearing of the dispute had taken place before all the three persons.
This objection does not appear to me to be fatal to the jurisdiction of the Tribunal, because under section 8 of the Act it is not obligatory on the Government to appoint a new member to fill a vacancy if one of the members ceases to be available at any time during the proceedings.
Under that section, if the Chairman ceases to be available, the Govern ment must appoint his successor, whereas if a member ceases to be available the Government may or may not appoint any one to fill his place.
In the present case, our attention was drawn to some correspondence which shows that one of the members was called upon to act as a member of another Tribu nal and the award in question was pronounced after informing the Government of the procedure which the Chairman and the remaining members intended to adopt.
In the view I have taken, this appeal must fail, and I would accordingly dismiss it with costs.
MAHAJAN J. This is an appeal by special leave from the determination of an industrial dispute by the Industrial Tribunal appointed under Ordinance VI of 1949.
Bharat Bank Limited, Delhi, the appellant, is a company registered under the Indian Companies Act.
469 Its employees made certain demands and as a result of an unfavourable response from the bank it appears that they struck work on the 9th March, 1949.
The bank in its turn served notices on them to resume work and proceeded to discharge a number of them between the 19th March and 24th March as they failed to do so.
The Central Government constitued a Tribunal consisting of three persons for the adjudication of industrial disputes in banking companies under section 7 of the (XIV of 1947), The disputes mentioned in schedule II of the notifi cation were referred under section 10 of the Act to this Tribunal.
Item 18 of this schedule reads as follows : "Retrenchment and victimization (Specific cases to be cited by employees).
" The dispute under this item between the Bharat Bank and its employees was heard by the Tribunal at Delhi and its award was made on the 19th January, 1950.
It was published in the Government of India Gazette dated 4th February, 1950, and was declared to be binding for a period of one year.
The award of the Tribunal was signed by two out of its three members.
A preliminary objection was raised on behalf of the Central Government as well as on behalf of the respondents that this Court had no jurisdiction to grant special leave to appeal against the determination of an Industrial Tribu nal inasmuch as it did not exercise the judicial powers of the State and that its determination was not in the nature of a judgment, decree or order of a Court so as to be ap pealable.
This being the first case in which special leave was granted from the determination of an Industrial Tribu nal, it is necessary to examine the provisions of the Con stitution dealing with this matter and if possible, to define the limits of the jurisdiction of this Court under article 136.
This article is in these terms : "(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order m any cause or matter passed 470 or made by any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.
" The article occurs in Chapter IV of Part V of the Consti tution: "The Union Judiciary.
" Article deals with the establishment and constitution of the Supreme Court.
Article 131 confers original jurisdiction on this Court in certain disputes arising between the Government of India and the States etc.
Articles and 133 deal with the appellate juris diction of the Court in appeals from High Courts within the territory of India in civil matters.
By article 134 limited right of appeal in criminal cases has been allowed.
The Judicial Committee of the Privy Council which was the high est Court of appeal for India prior to 10th October, 1949, was not a Court of criminal appeal in the sense in which this Court has been made a Court of criminal appeal under article 134.
It could only entertain appeals on the crimi nal side in exercise of the prerogative of the King.
Article 135 empowers this Court to hear all appeals which under existing laws could be heard by the Federal Court of India.
By the Abolition of Privy Council Jurisdiction Act, 1949,which came into force on the 10th October, 1949, all the powers that were possessed by the Judicial Committee of the Privy Council in regard to cases or matters arising in India became exercisable by the Federal Court of India whether those powers were exercisable by reason of statutory authority or under the prerogative of the King.
The powers of the Judicial Committee were conferred upon it by the Judicial Committee Act, 1844 (7 & 8 Vict., C. 69).
Appeals lay to His Majesty in Council from judgments, sentences, decreesor orders of any Court of justice within any British colony or possession abroad.
Closely following article 135 which confers all the powers of the Judicial Committee on the Supreme Court comes article 136.
The language employed in this article is very wide and is of a comprehensive character.
Powers given 471 are of an overriding nature.
The article commences with the words "Notwithstanding anything in this Chapter.
" These words indicate that the intention of the Constitution was to disregard in extraordinary cases the limitations contained in the previous articles on this Court 's power to entertain appeals.
These articles dealt with the right of appeal against final decisions of High Courts within the territory of India.
Article 136, however, overrides that qualification and empowers this Court to grant special leave even in cases where the judgment has not been given by a High Court but has been given by any Court in the territory of India; in other words, it contemplates grant of special leave in cases where a Court subordinate to a High Court has passed or made any order and the situation demands that the order should be quashed or reversed even without having recourse to the usual procedure provided by law in the nature of an appeal, etc.
The word "order" in article 136 has not been qualified by the word "final.
" It is clear, therefore, that the power to grant special leave under this article against an order of a Court could be exercised with respect to interlocutory orders also.
Another new feature introduced in article 136 is the power given to grant special leave against orders, and determinations etc.
of any tribunal in the territory of India.
This word did not find place in the Judicial Committee Act, where the phrase used was "a Court of jus tice.
" It is the introduction of this new expression in article 136 that has led to considerable argument as to its scope.
Another expression that did not find place in the Judicial Committee Act but has been introduced in article 136 is the word "determination." A question has been raised as to the meaning to be given to these words in the article.
On the one hand, it was contended that the words "determina tion" and "tribunal" were introduced in the article in order to bring within the scope of the applellate jurisdiction of this Court all orders of tribunals of different varieties and descriptions.
On the other hand, it was said that the words "determination" and "tribunal" were added in the article by way of abundant caution and 472 the intention was that if a tribunal exercised the judicial powers of the State and the decision was passed in the exercise of that power, this Court as the highest judicial Court in the Republic would have power, if it considered, necessary in the ends of justice, to grant special leave.
Clause (2) of article 136 excludes the jurisdiction of this Court in respect of military Courts.
or Tribunal.
It is interesting to observe that in articles 138, 139 and 140 the Constitution has conferred powers on Parliament for further enlargement of the powers of this Court.
Two points arise for determination in this case: (1) whether the word "tribunal" in this article has been used in the same sense as "Court," or whether it has been used in a wider sense, and (2) whether the word "determination" in the article includes within its scope the determinations made by Industrial Tribunals or other similarly constituted bodies or whether it has reference only to determinations of a Court or a tribunal of a purely judicial character.
It was conceded by the learned counsel appearing for the Cen tral Government, Mr. Alladi Krishnaswami Aiyar, that if any tribunal, whether administrative, domestic or quasi judi cial, acts in excess of its jurisdiction, then it can be controlled by the High Courts under the powers conferred on them by article 226 by the issue of a writ of certiorari.
It was said that if the Industrial Tribunal in this case could be proved to have trespassed beyond the limits 0 its statutory jurisdiction, then the remedy lies elsewhere and not by a petition of special leave under article 136.
Mr. Alladi 's contentions may be briefly summarized as follows: (1) The expression "tribunal " means seat of a judge, or a court of justice.
Its necessary attribute is that it can give a final judgment between two parties which carries legal sanction by its own force.
That the word "tribunal" in juxtaposition to the word "court" could only mean a tribunal 'which exercised judicial functions of the State and did not include within its ambit a tribunal which had quasi judicial or administrative powers.
(2) The kinds of orders against which special leave to appeal could be given under article 136 473 have to be of the same nature as passed by a Court , ' in other words, it was said that unless there was a judicial determination of a controversy between two parties, the order would not be appealable.
That in the case of an Industrial Tribunal what gives binding force to the award is the declaration of the government, that the spark of life to it is given by that declaration and without that, the award of the Tribunal is lifeless and has no enforceability and hence cannot be held to be of an appealable nature.
It was further said that in cases between the Government and its employees, by the procedure prescribed in the Act the award could also be rejected, and that being so, by its own deter mination a tribunal could not impose a liability or affect rights.
Dr. Bakshi Tek Chand, appearing for the bank, on the other hand argued that whenever a tribunal, whether exercis ing judicial or quasi judicial functions, determined a matter in a judicial manner, then such a determination is within article 136.
It was said that an Industrial Tribunal has no administrative or executive functions, that its duty is to adjudicate on an industrial dispute, i.e., to act as a Judge, on certain kinds of disputes between employers and employees and that its functions are of a judicial nature, though the ambit of the powers conferred is larger than that of an ordinary Court of law inasmuch as it can grant reliefs which no Court of law could give, but that is because of the powers conferred on it by law.
It was argued that the plain words of the article should not be given a narrow meaning when the intention of the Constitution was to confer the widest power on this Court.
It was further contended that as between private employers and employees and even in certain cases between Government and its employees the decision of the Tribunal was binding on the Government and Government had no power either to affirm, modify or reject it.
All that it was authorised to do was to announce it and by its declaration give it enforceability; that fact, howev er, could not affect the question of appealability of the determination under article 136.
It was finally argued that powers should be exercised by this Court wherever there is a miscarriage 474 of justice by a determination of any tribunal and that if the intention of the Constitution by use of the word "tribunal"was in the same sense as "court," then it was not necessary to import it in article 136, because all tribunals that exercise judicial functions fall within the definition of the word "court" though they may not have been so de scribed.
After considerable thought I have reached the conclusion that the preliminary objection should be overruled.
I see no cogent reasons to limit the plain words of the statute and to place a narrow interpretation on words of widest ampli tude used therein.
In construing the articles of the Con stitution it has always to be remembered that India has been constituted into a sovereign democratic republic in order to ensure justice to all its citizens.
In other words, the foundations of this republic have been laid on the bedrock of justice.
To safeguard these foundations so that they may not be undermined by injustice occurring anywhere this Court has been constituted.
By article S2 of the Constitu tion the Court is empowered to see that the fundamental rights conferred on the citizens by the Constitution are not in any way affected.
By article 136 it has been given overriding power to grant special leave to appeal against orders of courts and tribunals which go against the princi ple of natural justice and lead to grave miscarriage of justice.
The exercise of these, powers could only have been contemplated in cases which affect the rights of people living within the territory of India in respect of their person, property or status.
The question, therefore, for consideration is whether the jurisdiction conferred by use of unambiguous phraseology and by words which have a plain grammatical meaning and are of the widest amplitudeshould be limited and restricted on considerations suggested by Mr. Alladi.
The construction suggested by the learned counsel, if accepted, would in the first instance make the use of certain words in the article unnecessary and redundant and would run counter to the spirit of the Constitution.
It must be presumed that the draftsmen of the Constitution knew well the fact that there were a number of tribunals consti tuted in this country 475 previous to the coming into force of the Constitution which were performing certain administrative, quasi judicial or domestic functions, that some of them had even the trap pings of a Court but in spite of those trappings could not be given that description.
It must also be presumed that the Constitution makers were aware of the fact that the highest Courts in this country had held that all tribunals that discharged judicial functions fell within the definition of the expression "Court.
" If by the use of the word "tribu nal" in article 136 the intention was to give it the same meaning as "Court," then it was redundant and unnecessary to import it in the article because, by whatever name de scribed, such a tribunal would fall within the definition of the word "Court.
" The word "Court" has a well known meaning in legislative history and practice.
As pointed out in Halsbury 's Laws of England, the word "Court" originally meant the King 's Palace but subsequently acquired the meaning of (1) a place where justice was admin istered, and (2) the person or persons who administer it.
In the Indian Evidence Act it is defined as including all judges and magistrates and all persons except arbitrators legally authorized to take evidence.
This definition is by no means exhaustive and has been framed only for the pur poses of the Act.
There can be no doubt that to be a Court, the person or persons who constitute it must be entrusted with judicial functions, that is, of deciding litigated questions according to law.
However, by agreement between parties arbitrators may be called upon to exercise judicial powers and to decide a dispute according to law but that would not make the arbitrators a Court.
It appears to me that before a person or persons can be said to constitute a Court it must be held that they derive their powers from the State and are exercising the judicial powers of the State.
In R.v.
London County Council (1), Saville L.J. gave the following meaning to the word "Court" or "judicial authori ty" : (1) [1931]2K.B. 215.
61 476 "It is not necessary that it should be a Court in the sense that this Court is a Court, it is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition; and it is not necessary to be strictly a Court if it is a tribuna which has to decide rightly after hearing evidence and opposition.
" As pointed out in picturesque language by Lord Sankey L.C. in Shell Co. of Australia vs Federal Commissioner of Taxation(1), there are tribunals with many of the trappings of a Court which, nevertheless, are not Courts in the strict sense of exercising judicial power.
It seems to me that such tribunals though they are not full fledged Courts, yet exercise quasi judicial functions and are within the ambit of the word "tribunal" in article 136 of the Constitution.
It was pointed out in the above case that a tribunal is not necessarily a Court in this strict sense because it gives a final decision, nor because it hears witnesses oath nor because two or more contending parties appear before it between whom it has to decide, nor because it gives deci sions which affect the rights of subjects nor because there is an appeal to a Court, nor because it is a body to which a matter is referred by another body.
The intention of the Constitution by use of the word "tribunal" in the article seems to have been to include within the scope of article 136 tribunals adorned with similar trappings as Court but strictly not coming within that definition.
Various defi nitions of the phrase "judicial power" have been given from time to time.
The best definition of it on high authority is the one given by Griffith C.J. in Huddart, Parker & Co. vs Moorehead(2), wherein it is defined as follows : "The words 'judicial power ' as used in section 71 the Constitution mean the power which every sovereign author ity must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property.
The exer cise of this power does not begin [19311 A. C. 275.
(2) ; , 357. 477 until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.
" It was conceded that a tribunal constituted under the , exercises quasi judicial powers.
That phrase implies that a certain content of the judicial power of the State is vestedit and it is called upon to exercise it.
An attempt was made to define the words "judicial" and "quasi judicial" in the case of Cooper vs Wilson (1).
The relevant quotation reads thus : "A true judicial decision presupposes an existing dis pute between two or more parties, and then involves four requisites : (1) The presentation necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal argument by the parties, and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law.
A quasi judicial decision equally presup poses an existing ' dispute between two or more parties and involves (1) and (2), but does not necessarily involve (3) and never involves (4).
The place of (4)is in fact taken by administrative action, the character of which is determined by the Minister 's free choice.
" The extent of judicial power exercised by an ]industrial Tribunal will be considered hereinafter in the light of the observations cited above.
Reference was made to certain passages from Professor Allen 's book on Law and Order, Chapter IV, page 69, where mention is made of the kinds of administrative tribunals functioning in various countries today.
Porter on Adminis trative Law, 1929 Edn., (1) , at p. 340.
478 page 194, was also relied upon.
There can be no doubt that varieties of administrative tribunals and domestic tribunals are known to exist in this country as well as in other countries of the world but the real question to decide in each case is as to the extent of judicial power of the State exercised by them.
Tribunals which do not derive authority from the sovereign power cannot fall within the ambit of article 136.
The condition precedent for bringing a tribu nal within the ambit of article 136 is that it should be constituted by the State.
Again a tribunal would be outside the ambit of article 136 if it is not invested with any part of the judicial functions of the State but discharges purely administrative or executive duties.
Tribunals, however, which are found invested with certain functions of a Court of justice and have some of its trappings also would fall within the ambit of article 136 and would be subject to the appellate control of this Court whenever it is found neces sary to exercise that control in the interests of justice.
It is now convenient to consider whether a tribunal constituted under the , exer cises all or any one of the functions of a Court of justice and whether it discharges them according to law or whether it can act as it likes in its deliberations and is guided by its own notions of right and wrong.
The phrase "industrial dispute" has been defined in section 2 clause (k) of the Act as follows : "any dispute or difference between employers and em ployees, or between employers and workmen, or between work men and workmen, which is connected with the employment or non employment or the terms of employment or with the condi tions of labour, of any person.
" Such a dispute concerns the rights of employers and employees.
Its decision affects the terms of a contract of service or the conditions of employment.
Not only may the pecuniary liability of an employer be considerably affect ed by the adjudication of such dispute but it may even result in the imposition of punishments on him.
It may adversely 479 affect the employees as well.
Adjudication of such a dis pute affects valuable rights.
The dispute and its result can always be translated in terms of money.
The point for decision in the dispute usually is how much money has to pass out of the pocket of the employer to the pocket of the employee in one form or another and to what extent the right of freedom of contract stands modified to bring about indus trial peace.
Power to adjudicate on such a dispute is given by section 7 of the statute to an Industrial Tribunal and a duty is cast on it to adjudicate it in accordance with the provisions o Act.
The words underlined clearly imply that the dispute has to be adjudicated according to law and not in any other manner.
When the dispute has to be adjudicated in accordance with the provisions of the Act, it follows that the tribunal has to adhere to law, though that law may be different from the law that an ordinary Court of justice administers.
It is noteworthy that the tribunal is to consist of experienced judicial officers and its award is defined as a determination of the dispute.
The expression "adjudication" implies that the tribunal is to act as a judge of the dispute; in other words, it sits as a Court of justice and does not occupy the chair of an administrator.
It is pertinent to point out that the tribunal is not given any executive or administrative powers.
In section 38 of the Act power is given to make rules for the purpose of giving effect to the provisions of the Act.
Such rules can provide in respect of matters which concern the powers and procedure of tribunals including rules as to the summoning of witness es, the production of documents relevant to the subject matter and as to appearance of legal practitioners in pro ceedings under this Act.
Rule 3 of these rules provides that any application for the reference of an industrial dispute to a tribunal shall be made in form (A) and shall be accompanied by a statement setting forth, inter alia, the names of the parties to the dispute and the specific matters of dispute.
It is in a sense in the nature of a plaint in a suit.
In rule 13 power is given to administer oaths.
Rule 14 provides as follows : "A tribunal may accept, admit or call for 480 evidence at any stage of the proceedings before it and in such manner as it may think fit.
" Rule 17 provides that at its first sitting the tribunal is.
to call upon the parties to state their case.
In rule 19 provision has been made for proceedings ex parte.
Rule 21 provides that in addition to the powers conferred by sub section (3) of section 11 of the Act, a tribunal shall have the same powers as are vested in a civil Court under the Code of Civil Procedure when trying a suit, in respect of the following matters, namely, (a) discovery and inspection; (b) granting of adjournment; (c) reception of evidence taken on affidavit; and that the tribunal may summon and examine suo motu any person whose evidence appears to it to be material.
It further says that the tribunal shall be deemed to be a civil Court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 189S. Rule 21 says that the representatives of the parties, appearing before a tribunal, shall have the right of examination, cross exami nation and re examination and.
of addressing the Court or Tribunal when all evidence has been called.
In rule 30 it is provided that a, party to a reference may be represented by a legal practitioner with the permission of the tribunal and subject to such conditions as the tribunal may impose.
In section 11 (3) it is laid down that a tribunal shall have the same powers as are vested in a civil Court under the Code of Civil Procedure when trying a suit, in respect of the following matters, namely, (a) enforcing the attendance of any person and examining him on oath; (b) compelling the production of documents and material objects; (c) issuing commissions for the examination of witnesses; (d) in respect of such other matters as may be prescribed; and every in quiry or investigation by a tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code.
It is difficult to conceive in view of these provisions that the Industrial Tribunal per forms any funCtions other than that of a judicial nature.
The tribunal has certainly the first three requisites and characteristics of a Court as defined above.
It has cer tainly a considerable element of the fourth also inasmuch as. 481 the tribunal cannot take any administrative action, the character of which is determined by its own choice.
It has to make the adjudication in accordance with the provisions of the Act as laid down in section 7.
It consists of persons who are qualified to be or have been judges.
It is its duty to adjudicate on a serious dispute between employers and employees as affecting their right of freedom of contract and it can impose liabilities of a pecuniary nature and disobedience of its award is made punishable.
The powers exercisable by a tribunal of this nature were considered in a judgment ' of the Federal Court of India in Western India Automobile Association vs Industrial Tribunal, Bombay (x), and it was observed that such a tribunal can do what no Court can, namely, add to or alter the terms or condi tions of the contract of service.
The tribunal having been entrusted with the duty of adjudicating a dispute of a peculiar character, it is for this reason that it is armed with extraordinary powers.
These powers, however, are derived from the statute.
These are the rules of the game and it has to decide according to these rules.
The powers conferred have the sanction of law behind it and are not exercisable by reason of any discretion vested in the members of the tribunal.
The adjudication of the dispute has to be in accordance with evidence legally adduced and the parties have a right to be heard and being represented by a legal practitioner.
Right to examine and cross examine witnesses has been given to the parties and finally they can address the tribunal when evidence is closed.
The whole procedure adopted by the Act and the rules is modelled on the Code of Civil Procedure.
In my opinion, therefore, the Industrial Tribunal has all the necessary attributes of a Court of justice.
It has no other function except that of adjudicating on a dispute.
It is no doubt true that by reason of the nature of the dispute that they have to adju dicate the law gives them wider powers than are possessed by ordinary Courts of law, but powers of such a nature do not affect (1) [1949]] F.C.R. 321.
482 the question that they are exercising judicial power.
Stat utes like the Relief of Indebtedness Act, or the Encumbered Estates Act have conferred powers on Courts which are not ordinarily known to law and which affect contractual rights.
That circumstance does not make them anything else but tribunals exercising judicial power of the State, though in a degree.
different from the ordinary Courts and.
to an extent which is also different from that enjoyed by an ordinary Court of law.
They may rightly be described as quasi judicial bodies because they are out of the hierarchy of the ordinary judicial system but that circumstance cannot affect the question of their being within the ambit of article 136.
It may also be observed that the tribunal is deemed to be a civil Court for certain purposes as laid down in rule 21 of the rules above cited and in section 11(3) of the Act.
As a civil Court if it exercises any of the powers contem plated by this section its decisions would become subject to appeal to a District Judge and a fortiori this Court 's power under article 136.
would at once be attracted in any case in respect of these matters.
Again, in Chapter VI of the Act breach of the terms of an award has been made punishable by section 29 of the Act.
The result therefore, is that disobedience of the terms of an award is punishable under the Act.
That being so, a determination of the tribu nal not only affects the freedom of contract and imposes pecuniary liability on the employer or confers pecuniary benefits on the employees, but it also involves serious consequences as failure to observe those terms makes a person liable to the penalties laid down in Chapter VI.
An award which has these serious consequences can hardly be said to have been given by a tribunal which does not exer cise some of the most important judicial functions of the State.
Considerable stress was laid by Mr. Alladi on the provi sions of sections 15 and 19 of the Act.
Section 15 enacts as follows : "(1) Where an industrial dispute has been referred to a Tribunal for adjudication, it shall hold its 483 proceedings expeditiously and shall, as soon as practicable on the conclusion thereof, submit its award to the appropri ate Government.
(2) On receipt of such award, the appropriate Govern ment shall by order in writing declare the award to be binding.
Provided that where the appropriate Government is a party to the dispute and in its opinion it would be inexpe dient on public grounds to give effect to the whole or any part of the award, it shall on the first available opportu nity lay the award together with the statement of its rea sons for not making a declaration as aforesaid before the Legislative Assembly of the province, or where the appropri ate Government, is the Central Government, before the Cen tral Legislature, an d shall, as soon as may be, cause to be moved therein a resolution for the consideration of the award; and the Legislative Assembly or as the case may be, the Central Legislature, may by its resolution confirm, modify or reject the award.
(3) On the passing of a resolution under the proviso to sub section (2), unless the award is rejected thereby, the appropriate Government shall11 by order in writing declare the award as confirmed or modified by the resolution, as the case may be, to be binding.
(4) Save as provided in the proviso to subsection (3) of section 19, an award declared to be binding under this section shall not be called in question in any manner.
" As regards clause (4), it was conceded rightly that a law dealing with industrial disputes and enacted in the year 1947 could not in any way,affect the provisions of the Constitution laid down in article 136.
It was however, strenuously urged that the award of the tribunal had no binding force by itself and unless the appropriate Govern ment made a declaration in writing under clause (2) of section 15, this award was a lifeless document and had no sanction behind it and therefore it could not have been contemplated that if would be appealable even by special leave.
In my opinion, this contention is unsound.
The provisions of clause (2) of 484 section 15 leave no discretion in the Government either to affirm, modify or reject the award.
It is bound to declare it binding.
It has no option in the matter.
In such a situation it is the determination by the tribunal that matters.
Without that determination Government cannot function.
It does not possess the power either to adjudi cate the dispute or to alter it in any manner whatsoever.
That power vests in the tribunal alone.
The rights of the parties are really affected by the adjudication contained in the award, not by the Government 's declaration which is automatic.
It is no doubt true that announcement of the award by the Government gives it binding force but that does not affect the question of the appealability of the determination under article 136 of the Constitution.
The apposite answer to this contention may be given in the language of the decision in Rex vs Electricity Commissioners (1).
The relevant passage runs thus : "It is necessary, however, to deal with what I think was the main objection of the Attorney General.
In this case he said the Commissioners come to no decision at all.
They act merely as advisers.
They recommend an order embodying a scheme to the Minister of Transport, who may confirm it with or without modifications.
Similarly the Minister of Trans port comes to no decision.
He submits the order to the Houses of parliament, who may approve it with or without modifications.
The Houses of Parliament may put anything into the order they please, whether consistent with the Act of 1919, or not.
Until they have approved, nothing is decided, and in truth the whole procedure, draft scheme, inquiry, order, confirmation, approval, is only part of a process by which Parliament is expressing its will, and at no stage is subject to, any control by the Courts.
It is unnecessary to emphasize the constitutional importance of this contention.
Given its full effect, it means that the checks and safeguards which have been imposed by Act of Parliament, including the freedom from compulsory taking, can be removed, and new and onerous and (1) , at 207.
485 inconsistent obligations imposed without an Act of Parlia ment, and by simple resolution of both Houses of Parliament.
I do not find it necessary to determine whether, on the proper construction of the statute, resolutions of the two Houses of Parliament could have the effect claimed.
In the provision that the final decision of the Commissioners is not to be operative until it has been approved by the two Houses of Parliament I find nothing inconsistent with the view that they act judicially and within the limits pre scribed by Act of Parliament, and that the Courts have power to keep them within those limits.
It is to be noted that it is the order of the Commissioners that eventually takes effect, neither the Minister of Transport who confirms, nor the Houses of Parliament who approve.
can under the statute make an order which in respect of the matters in question has any operation.
I know of no authority which compels me to hold that a proceeding cannot be a judicial proceeding subject to confirmation or approval, even where the approval has to be that of the Houses of Parliament.
The authorities are to the contrary The observations, though they relate to a case which concerns the issue of a writ of prohibition and certiorari, have application to the present case.
Here no discretion whatsoever has been left in the Government in ordinary cases to either modify or t0 reject the determination of the tribunal.
The fact that the Government has to make a decla ration after the final decision of the tribunal is not in any way inconsistent with the view that the tribunal acts judicially.
It may also be pointed out that within the statute itself a clue has been provided which shows that the circumstance that the award has to be declared by an order of Government to be binding does not affect the question of its appealability.
In article 136 clause (2) express provi sion has been made for excepting from the ambit of article 136 the decisions of military courts and tribunals.
It follows that but for the exception it was considered that these would be within article 136 clause (1).
It is quite clear from the various provisions of the Army Act that the decisions of military tribunals or courts are subject to confirmation either by 486 the Commander in Chief or various other military authori ties.
It is only after such confirmation that 'that can operate.
It has never been considered that fact in any way affects the question of their appealability.
Rex vs Minister of Health (1) also supports this view.
There by the Housing Act, 1925, by section 40, a local authority which had prepared an improvement scheme was required to present a petition to the Minister praying that an order should be made confirming such scheme.
Sub section (3) provided that the Minister after considering the peti tion may cause a local inquiry to be made and may by order confirm the scheme with or without conditions or modifica tions.
In sub section (5) it was stated that the order of the Minister when made shall have effect as if enacted in this Act.
It was held be the Court of Appeal that as the order made by the Minister was made without the statutory conditions having been complied with it was ultra vires and therefore a writ of certiorari should issue for the purpose of quashing it.
Reliance was placed by Scrutton L.J. on Rex vs Electricity Commissioners (2).
The same.view was ex pressed in Minister of Health vs The King (3).
It was observed that judicial review by prohibition or a writ of certiorari was permissible if the Minister of Health in confirming the order exceeded his statutory powers.
It is clear therefore that simply because an order has to be confirmed by a Minister or by the Government it in any way affects the power of judicial review.
Reference may also be made to the observations in Smith vs The Queen (4).
At page 623 it was observed that it is a common principle in every case which has in itself the character of a judicial pro ceeding that the party against whom a judgment is to operate shall have an opportunity of being heard.
In this sense it can hardly be disputed that the proceeding before an indus trial Tribunal is a judicial proceeding.
In my judgment, therefore, the contention raised by Mr. Alladi that this (1) (3) [1931] A.C. 494; (2) (4) 3 A.C. 245.
487 Court cannot exercise its powers under article because the decision of the tribunal has no force till a declaration is made by the Government cannot be sustained.
As regards section 19, it was contended that an award declared by the appropriate Government under section 15 to be binding can only come into operation on such date as may be specified by the appropriate Government and can only remain in operation for such period not exceeding one year, as may be fixed by that Government and it was said that herein the Government had the power to state the period from which the award was to commence and the time for which it was to remain in force.
This section does not, in my opin ion, affect the question of the appealability of the deter mination of the tribunal.
Government has certain functions to perform in its own sphere after the award is made.
In certain cases it is bound to declare that award binding.
In other cases, when it is itself a party to the dispute, it has certain overriding powers and these overriding powers are that if it considers that the award is not in public interests it may refer it to the legislature.
The legisla ture, however, has the power to modify, accept or reject the award.
These overriding powers presuppose the existence of a valid determination by a tribunal.
If that determina tion is in excess of jurisdiction or otherwise proceeds in a manner that offends against the rules of natural justice and is set aside by exercise of power under article 136, then no occasion arises for exercise of governmental power under the Act.
Given a valid award, it could not be denied that the Government could exercise its powers in any manner it con sidered best and the exercise of that power is outside the constitution of this Court.
In this connection reference was made to Moses vs Parker (1).
The passage on which emphasis was laid reads as follows : "The Court has been substituted for the commissioners to report to the governor.
The difference is that their report is to be binding on him.
Probably it was (1) [1896] A.C. 488 thought that the status and training of the judges made them the most proper depositaries of that power.
But that does not make their action a judicial action in the sense that it can be tested and altered by appeal.
It is no more judicial than was the action of the commissioners and the governor.
The Court is to be guided by equity and good conscience and the best evidence.
So were the commissioners.
So every public officer ought to be.
But they are expressly exoner ated from all rules of law and equity, and all legal forms.
How then can the propriety of their decision be tested on appeal ? What are the canons by 'which this Board is to be guided in advising Her Majesty whether the Supreme Court is right or wrong ? It seems almost impossible that decisions can be varied except by reference to some rule, whereas the Court making them is free from rules.
If appeals were allowed, the certain result would be to establish some system of rules, and that is the very thing from which the Tasmanian Legislature has desired to leave the Supreme Court free and unfettered in each case.
If it were clear that appeals ought to be allowed such difficulties would doubt less be met somehow.
But there are strong arguments to show that the matter is not of an appreciable nature.
" One would have expected that after this opinion the decision would have been that the Judicial Committee had no jurisdiction to entertain the appeal but their Lordships proceeded to base their decision not on this ground but on the ground that this was not a fit case for the exercise of the prerogative of the King.
In my opinion, the observations made in that case have no apposite application to the provi sions of the statute with which we are concerned.
I do not see any difficulty in this case in testing the propriety of the determination of the tribunal.
This Court is not to substitute its decision for the determination of the tribu nal when granting relief under article 136.
When it chooses to interfere in the exercise of these extraordinary powers, it does so because the tribunal has either exceeded its jurisdiction or has approached the questions referred to it in a manner which is likely to 489 result in injustice or has adopted a procedure which runs counter to the well established rules of natural justice.
In other words, if it ,has denied a hearing to a party or has refused to record his evidence or has acted in any other manner, in an arbitrary or despotic fashion.
In such cir cumstances no question arises of this Court constituting itself into a tribunal and assuming powers of settling a dispute.
All that the Court when it entertains an appeal would do is to quash the award and direct the tribunal to proceed within the powers conferred on it and approach the adjudication of the dispute according to principles of natural justice.
This Court under article 136 would not constitute itself into a mere court of error.
Extraordinary powers have to be exercised in rare and exceptional cases and on well known principles.
Considered in the light of these principles, there is no insuperable difficulty in the present case of the nature pointed out in the passage cited above.
It was conceded that the High Court could exercise powers under section 226 and could quash an award but it was said that under article 136 this power should not be exer cised in an appeal.
I do not see why ? Particularly when after the High Court has passed any decision on an applica tion made to it in exercise of the powers under section 226, that decision could be brought to this Court in appeal.
In the matter of an industrial dispute where expedition is the crux of the matter, it is essential that any abuse of powers by such tribunals is corrected as soon as possible and with expedition.
It may be mentioned that it is no novel practice for a court empowered to grant special leave to exercise its powers even though there may be intermediate rights of appeal or other remedies available, if it is considered essential to do so in extraordinary situations.
Vide Bent wick 's Privy Council Practice, 3rd Edn., page 125.
Therein it is stated as follows : "In several cases from Jamaica, the Privy Council grant ed leave to appeal to the Queen in Council directly from the Supreme Court, without an intermediate appeal (which would have been attended with much 490 expense and delay) to the Court of Error in the island, there being in each of those cases manifestly some point of law raised which deserved discussion.
" The cases were In Re Barnett(1), Harrison vs Scott (2), and Attorney General of Jamacia vs Manderson (s).
The phraseology employed in article 136 itself justifies this course.
The article empowers this Court to grant special leave against sentences or orders made by any court.
In all other articles of the Constitution right of appeal is con ferred against final decisions of the highest court of appeal in the country but under this article power is given to this Court to circumvent that procedure if it is considered necessary to do so.
I am, therefore, of the opinion that the mere circumstance that a remedy in the nature of a writ of certiorari is open to the petitioners does not necessarily lead to the conclusion that the power of this Court under article 136 is circumscribed by that circumstance.
Whenever judicial review is permissible in one form or another, this Court as the highest Court in the land can exercise its special powers and circumvent ordinary procedure by granting special leave.
What it has to ulti mately decide it can decide earlier.
I now proceed to examine some of the cases to which reference was made by Mr. Alladi.
Three Australian cases were cited which concern the construction of sections 51, 71 and 72 of the Australian Constitution (63 and 64 Vict., c. 12).
Section 72 requires that every Justice of the High Court and every Justice of any other Court created by the Parliament of the Common wealth shall subject to the power of removal contained in the section be appointed for life.
Section 71 confers the whole judicial power of the Commonwealth upon the Courts therein mentioned and no other tribunal or body can exercise that power.
Every Court referred to in section 71 has to be constituted in the manner provided by section 72.
The ques tion in these cases was as to the meaning of the phrase "judicial power of the Commonwealth.
" Similar (1) 4 Moo. 453. (2) 5 Moo. 357. (3) 6 Moo. 239. 491 phraseology has not been used in any part of the Constitu tion of India and in these circumstances it is difficult to derive any assistance from these decisions in solving the problem before us.
The Constitution of India is not mo delled on the Constitution of Australia and that being so, any observations made in decisions given under that Consti tution cannot be held to be a safe guide in the interpreta tion of language employed in a Constitution differently drafted.
The first of these cases is Waterside Workers ' Federa tion of Australia vs
J.W. Alexander Ltd. (1).
Therein it was held that the power conferred by the Commonwealth Concilia tion and Arbitration Act 1904 1915 upon the Commonwealth Court of Conciliation and Arbitration to enforce awards made by it is part of "the judicial power of the Commonwealth "within the meaning of section 71 of the Constitution, and can only be vested in the courts mentioned in that section.
Mr. Alladi placed reliance on a passage at page 467 in the judgment of Isaacs and Rich JJ., which reads as follows : "The arbitral part of the Act, therefore, is quite within the power of pl. xxxv, and is not intended by the Act to be exercised by an ordinary Court of Justice, which, it is suggested, Parliament by some strange perversity proceed ed to destroy at birth.
It is true that enforcement provi sions are found. .
But all this was in imitation of the State Acts of Arbitration, and not in reliance on the Judi cature Chapter of the Federal Constitution.
The arbitral portion of the Act is, in our opinion, perfectly good, subject to its severability from any other portion which may be bad.
" It was argued that the Industrial Tribunal here was an arbitration tribunal of the same kind as in Australia and exercises similar functions.
It is however pertinent to observe that the phraseology employed in section 15 of the Indian Act is different from that used in the Australian statute.
The Indian statute has constituted different bodies for different purposes.
An Industrial Tribunal has been constituted (1) 25 C.L.R. 63 492 only to discharge one function of adjudication.
It is not described as an arbitral tribunal.
The Act has avoided the use of the word "arbitration" either in preamble or in any of its relevant provisions though the determination has been named as an award.
In these circumstances it is unsafe to seek any guidance from observations made in this case.
The next case to which reference was made is Rola Co. (Australia) Proprietary Ltd. vs The Commonwealth (1).
The question here was whether the Women 's Employment Board constituted under the Women 's Employment Act, 1942, did not exercise the judicial power of the Commonwealth.
It was held that the Board exercised functions which were arbitral in character.
Emphasis was laid on a passage occurring in page 198 of the report which reads as follows : "An industrial award lays down rules of conduct for the future.
It does not purport to ascertain and enforce exist ing rights; it is directed to the creation of new rights.
It is urged on behalf of the plaintiff that a determination of the Committee does not create a rule of conduct binding the parties for the future, but that it authoritatively deter mines a possibly controverted question of fact and that the making of such an authoritative determination is necessarily an exercise of judicial power.
Reference is made to the frequently quoted statement of Griffith C.J. in Huddart Parker & Co. Pty. Ltd. vs Moorehead (2), approved by the Privy Council in Shell Co. of Australia Ltd. vs Federal Commissioner of Taxation (8):__ "I am of opinion that the words 'judicial power ' as used in section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controverises between its subjects or between itself and its subjects, whether the rights relate to life, liberty or property.
The exercise of this power does not begin until some tribunal which has power to give a binding and authori tative decision (whether subject to appeal or not) is called upon to take action." (1) ; (2) a C.L.R. 330 at 357.
(3) 493 Reg.
5C gives Committees power.
to decide controversies between subjects relating to their rights and the regulation purports to make those decisions binding and authoritative.
I am not satisfied that the words of Griffith C.J. are properly interpreted when it is said that they mean that a power to make binding and authoritative decisions as to facts is necessarily judicial power.
I direct attention to the concluding words " is called upon to take action.
" In my opinion these words are directed to action to be taken by a tribunal which has power to give a binding and authorita tive decision.
The mere giving of the decision is not the action to which the learned Chief Justice referred.
If a body which has power to give a binding and authoritative decision is able to take action so as to enforce that deci sion, then, but only then, according to the definition quoted, all the attributes of judicial power are plainly present.
I refer to what I say more in detail hereafter, that the Privy Council, in the Shell case (1), in which approval was given to the definition quoted, expressly held that a tribunal was not necessarily a Court because it gave decisions (even final decisions) between contending parties which affected their rights.
In Huddart Parker 's case (2), Isaacs 1. referred to the statement of Palles C.B. in R.v.
Local Government Board for Ireland (3) "to erect a tribunal into a 'Court ' or 'juris diction ', so as to make its determinations judicial, the essential element is that it should have power, by its determination within jurisdiction, to impose liability or affect rights." "By this," said the learned Chief Baron, "I mean that the liability is imposed, or the right affected by the determination only, and not by the fact determined, and so that the liability will exist, or the right will be affected, although the determination be wrong in law or in fact.
It is otherwise of a ministerial power.
If the existence of such a power depends upon a contingency, al though it may be necessary for the officer to determine whether (1) (2) ; at 383.
(3) at p. 373.
494 the contingency has happened, in order to know whether he shall exercise the power, his determination does not bind.
The happening of the contingency may be questioned in an action brought to try the the act done under the alleged exercise of the power.
But where the determination binds, although it is based on an erroneous view of facts or law, then the power authorizing it is judicial.
There we get a modern use of the term 'judicial power '.
" This state ment of the characteristics of judicial power looks to what, in Waterside Workers ' Federation of Australia vs Gilchrist, Watt & Sanderson Ltd.(1), Isaacs and Rich JJ.
referred to as the creation of instant liability in specified persons as distinct from laying down a rule or standard of conduct for the future.
The decision of an ordinary Court that B is bound to pay money to A applies a pre existing standard of rights and duties not created by the Court itself, with the result that there is an immediately enforceable liability of B to pay to A the sum of money in question.
The decision of the Wom en 's Employment Board does not create any such liability, nor does the determination of a Committee of Reference create any such liability.
In order to impose an immediale ly enforceable liability upon any employer, for example, to pay wages to a particular female, it would be necessary for the female or some person on her behalf (see reg.
9A) to sue in a court of competent jurisdiction.
If such a proceeding succeeded there would then be a liability created by the determination of the court.
such a proceeding the determina tion of the Committee of Reference would be evidence of the facts to which it related, but that determination would not in itself create "liability.
" The concluding words of the passage quoted above at once distinguish the present case from the Australian case.
The award given by an Industrial Tribunal in respect either of bonus or higher wages, etc.
is enforceable by its own force and by the coercive machienary of the Act and it is not merely a declaration of a character that furnishes a cause of action to the employee to bring a suit on its foot to recover the C.L.R. 482, 512.
495 wages.
An arbitral tribunal 's decision cannot be enforced unless it has the sanction of a Court of justice behind it but the award of the Tribunal is enforceable under the Act itself by the coercive machinery provided therein.
It is the terms of the award that are enforceable and not the terms of the order made by the Government.
It is the breach of the terms of the award that is punishable and not any breach of Government 's order.
The Government itself is bound to declare the award binding and it has no option whatsoever in the matter.
It is no doubt true that the tribunal has not only to decide the existing rights and liabilities of the parties and it can lay down rules of conduct for the future but it does so because by law it is authorised to do so.
Its decision carries the sanction with it.
The Government is bound to give effect to it and the statute enforces it by coercive machinery.
In my view, therefore, this decision again has no relevancy to the present case.
The third case to which reference was made is Shell Co. of Australia vs Federal Commissioner of Taxation (1).
That was an income tax matter and the decision has been consid ered in an earlier part of this judgment.
Reference was also made to Mohammad Ahmad vs Governor General in Council ("), in which it was held that an improvement trust was not a civil Court subordinate to the High Court under section 115 of the Code of Civil Procedure.
That has no bearing to the matter in issue here.
Similar point was discussed in Hari vs Secretary of State for India (3).
Labour Relations Board vs John East Iron Works Ltd. (4) is a Canadian case and the decision proceeded on the same lines as in the Australian cases.
Mr. Sen appearing for the respondents placed reliance on O 'Connor vs Waldron (5).
The relevant passage occurs at page 81 which runs thus : The law as to judicial privilege has in process of time developed.
Originally it was intended for the protection of judges sitting in recognised Courts of (1) (3) I.L.R. (2) I.L.R. (4) A.I.R. 1949 P.C. 129.
(5) , 496 Justice established as such.
The object no doubt was that judges might exercise their functions free from any danger that they might be called to account for any words spoken as judges.
The doctrine has been extended to tribunals exer cising functions equivalent to those of an established Court of Justice.
In their Lordships ' opinion the law on the subject was accurately stated by Lord Esher in Royal Aquari um etc.
Ltd. vs Parkinson (1), where he says that the privi lege applies wherever there is an authorized inquiry which, though not before a Court of Justice, is before a tribunal which has similar attributes.
This doctrine has never been extended further than to Courts of Justice and tribunals acting in a manner similar to that in which such Courts act '" The learned counsel contended that the. word "tribunal" in article 136 could only have reference to those tribunals which exercise functions equivalent to that of a Court of Justice.
I have no hesitation in holding that the Industrial Tribunal has similar attributes as that of a Court of Jus tice in view of the various provisions to which I have made reference.
Reference was also made to certain passages occuring in pages 422 and 428 of Toronto Corporation vs York Corporation (2).
That was a case of the Municipal Board of Ontario.
It was held there that the Board was merely an administrative tribunal.
Next reliance was placed on R.v.
National Arbitration Tribunal, Ex parte Horatio Crowther & Co. Ltd.(3).
That dealt with the powers of tile National Arbitration Tribunal.
In my opinion this citation also is not of much assistance.
It was again urged by Mr. Alladi that the word "tribu nal" was introduced in the article to provide for cases of tribunals like the Board of Revenue.
The suggestion does not appear to be sound, because a Revenue Board has all the attributes of a Court of justice and falls within the defi nition of the word "Court" in matters where it adjudicates on rights of parties.
(6) (7) [1938] A.C. &15.
(8) 497 The word "tribunal" has been used in previous legisla tion in a number of statutes and it is difficult to think that the Constitution when it introduced this word in arti cle 136 intended to limit its meaning to only those tribu nals which though not described as Courts strictly speaking, were discharging the same or analogous functions as were being discharged by Courts.
For the reasons given above I am of the opinion that the word "tribunal" in article 136 has to be construed liberally and not in any narrow sense and an Industrial Tribunal inasmuch as it discharges functions of a judicial nature in accordance with law comes within the ambit of the article and from its determination an application for spe cial leave is competent.
The question now to determine is whether the exercise of overriding powers of this Court can be justified on any ground whatsoever in the present case.
As I have already said, exceptional and extraordinary powers of this character can only be justifiably used where there has been a grave miscarriage of justice or where the procedure adopted by the Tribunal is such that it offends against all notions of legal procedure.
Dr. Bakshi Tek Chand for the petitioner bank urged four grounds justifying exercise of the special jurisdiction of this Court.
Firstly, he contended that the word "victimiza tion" used in clause 18 of the reference had been interpret ed in such a manner by the Tribunal that it had usurped jurisdiction to decide disputes which were never referred to it.
In my view this is not a matter which can justify the exercise of the powers under article 136.
This Court is not a mere Court of error.
The word "victimization" has not been defined in the statute and is not in any sense a term of law or a term of article It is an ordinary English word which means that a certain person has become a victim, in other words, that he has been unjustly dealt with.
It was argued that the word has acquired a special meaning in regard to industrial disputes and connotes a person who becomes a victim of the employer 's wrath by reason of his trade union activities and that the word cannot relate to a person who has been merely unjustly dismissed.
Be that as it may.
498 The determination of the Tribunal has not been materially affected by this interpretation of the word to any large extent and that being so, it does not call for the exercise of the special power.
The second ground urged was that the Tribunal has erred in ordering reinstatement of persons who were guilty of an illegal strike.
It was contended that section 23 (b) of the Act has been wrongly construed by it and as a result of this misconstruction persons who were guilty of a wrong and who could not have been reinstated have been reinstated.
In brief, the argument was that under section 23(b) when a matter has been referred to a tribunal in respect of an earlier strike, any strike during the pendency of that dispute is an illegal strike and that was the situation here.
The employees of the bank had struck work in December, 1948.
That dispute had been referred to an Industrial Tribunal.
It was during the pendency of that dispute that another strike took place which led to the dismissal of the employees who have now been reinstated by the present award.
The Calcutta High Court has held that a strike during the pendency of the period of truce and during the pendency of an earlier dispute before a tribunal is illegal even if it is brought about as a result of fresh and new demands which are not covered by the earlier dispute.
One of the members of the Tribunal thought that the decision laid down the law correctly on the point, but the other member thought that the decision was erroneous.
Both of them, however, agreed that whether the strike was legal or illegal that point did not in any way affect the question that they had to decide under issue 18.
The consequences of an illegal strike are laid down in the Act and certain penalties are provided therein.
The Act nowhere states that persons guilty of illegal strike cannot be reinstated.
Be that as it may.
The reference to the Tribunal was made by the Government in respect of an illegal.
strike and the Tribunal was bound to give its decision on the reference.
Item 18 of schedule II clearly empowers the tribunal to deal with cases of victimi zation as a result of the third strike which the petitioner described as illegal.
The Tribunal may be 499 wrong in the view they have taken but it seems to me this is again not a question of that vital character which would justify the grant of special leave under article 136.
The next question raised by the learned counsel that the award of the Tribunal is based on no evidence whatsoever.
This contention requires serious consideration.
I have examined the proceedings of the Tribunal and it appears that all ' it did was that as required by rule 17 at the first sitting it called upon the parties to state their cases.
Mr. Parwana on behalf of the employees stated their respec tive cases and Mr. Ved Vyas who represented the bank stated the bank 's case and after the cases had been stated the proceedings terminated and both parties addressed arguments and the Tribunal proceeded to give its award.
Whether the charge of victimization in individual cases was proved or not depended on proof of certain facts which had to be established by evidence.
The onus of proving victimization clearly rested on the employees.
No evidence whatsoever was led on their behalf.
The statement of the case by Mr. Parwana was not on oath.
There was no examination or cross examination of Mr. Parwana.
No affidavit supporting the facts stated by Mr. Parwana was filed by him or by any employee.
Mr. Parwana produced an abstract of the corre spondence but the original correspondence was not produced.
The bank disputed the facts stated by Mr. Parwana by means of a lengthy affidavit.
It seems no reference was made even to this affidavit by the Tribunal.
No counter affidavit was filed in reply to the facts stated in this 'affidavit.
The bank wanted to call some evidence.
Particular reference was made in respect of a scurrilous letter issued by one Bhatta charya on behalf of the employees and distributed by them, which it is alleged considerably shook the credit of the bank.
This opportunity was denied to it.
It was contended before us that the bank wanted to lead evidence on certain matters and that the opportunity to lead it was denied.
There is nothing on the record to support this contention.
The result therefore is that the facts on the basis of which allegations of victimization have been 64 500 made are neither supported by an affidavit nor by any evi dence and the award is based on no evidence whatsoever.
The Act as well as the rules framed under it contemplate a proper hearing, discovery and inspection of documents and production of evidence, etc.
None of this procedure was followed by the Tribunal.
It is difficult to see on what material the Tribunal has given its award as there is none existing on the present record and the respondents ' counsel could not point out to any such material.
At one time during the argument I was inclined to think that possibly both parties by agreement consented to treat the statement of case as evidence in the case and did not wish to produce any other evidence, but the affidavit filed on behalf of the bank disputes all the facts stated by Mr. Parwana.
The only evidence on the record is the bank 's affidavit and if the facts contained in the affidavit are accepted, then the determination made by the Tribunal cannot stand.
It seems to me therefore that the procedure adopted by the Tribunal was against all principles of natural justice and the award is thereby vitiated and should be set aside.
It happens that when the safeguard of an appeal is not provided by law the tendency sometimes is to act in an arbitrary manner like a benevolent despot.
Benevolent despotism, however, is foreign to a democratic Constitution.
The members of the Tribunal seem to have thought that having heard the state ment of the cases of the parties they could proceed to a judgment on their own view of its right or wrong unaided by any material.
That kind of procedure to my mind is unwar ranted by the statute and is foreign to a democratic Consti tution.
In these circumstances it is the compelling duty of this Court to exercise its extraordinary powers and to quash such an award.
The last contention raised by Bakshi Tek Chand was that though a Tribunal consisting of three persons was appointed to adjudicate on the dispute, the award has only been signed by two of them.
Reference in this connection was made to section 16 of the Act which says that the award of a Tribu nal shall be in writing and shall be signed by all the members of the 501 Tribunal and that nothing in the section shall be deemed to prevent any member of the Tribunal from recording a minute of dissent.
The provisions of the section are mandatory and have not been complied with.
It is common ground that the case was stated by the parties at a sitting when all the members of the Tribunal were present and the arguments were heard by all of them.
No sitting took place subsequent to this which would have necessitated the carrying on of pro ceedings by two members of the Tribunal by a quorum.
When the matter has been heard by all the three members, the award should have been given by all of them.
Therefore the award given by two of them is not the award of the Tribunal constituted by the Government.
It is therefore vitiated and has to be quashed.
Reference in this connection was made to section 8 of the Act which reads as follows : "If the services of the chairman of a Board or of the chairman or other member of a Court or Tribunal cease to be available at any time the appropriate Government shall, in the case of a chairman, and may in the case of any other member, appoint another independent person to fill the vacancy, and the proceedings shall be continued before the Board, Court or Tribunal so reconstituted.
" The Tribunal was never reconstituted by the Government by any notification.
Under section 7 a Tribunal has to be constituted in accordance with the provisions of the Act by the Government.
The Government having constituted a Tribunal of three persons it had power under section 8 to reconsti tute it but did not exercise that power.
The result there fore is that the Tribunal as originally constituted was not the Tribunal which gave the award in this reference.
Only two members have given the award.
It was said that one of the members ceased to be available and the Government was not bound to fill up that vacancy.
There is no material on the record to prove whether any member became unavailable and if so, when.
But even if a member becomes unavailable and the Government does not choose to fill up the vacancy, still the Government has to reconstitute the Tribunal by saying that 502 two members will now constitute the Tribunal.
An affidavit with two telegrams annexed was filed before "us on behalf of the respondents which disclosed that Mr. Chandrasekhara Aiyar who was one of the members of the Tribunal, in Novem ber, 1949, was appointed a member of the Boundary Commission in Bengal and that the other two members sent a telegram to the Labour Ministry asking it to fill up the vacancy or to reconstitute the Tribunal.
The advice given by the Ministry was that they could proceed as they were and that the Gov ernment would later on, if necessary, fill up the vacancy.
We are not concerned whether the advice given was right or wrong.
But the fact remains that the Tribunal was never reconstituted and it was not denied that Mr. Chandrasekhara Aiyar is now sitting in the same Tribunal without being again nominated to it and the Tribunal is hearing the same reference under the other issues referred to it.
Moreover, I do not see why after having heard the reference he could not give the award even if he was in Calcutta or sign the award given by the other two members.
The idea of three persons hearing a case and two of them deciding it is repug nant to all notions of fairness.
It may well have been that the opinion of the third may have influenced the other two or the decision arrived at may have been quite different.
It so happened in this case that two members of the Tribunal differed on an important question of law but somehow adjust ed their differences and gave a unanimous award.
The presence of the third in such a situation may have very vitally affected the result.
After a good deal of thought I feel that it would be most dangerous for this Court to condone proceedings of this character.
If exceptional powers are not exercised even when a body legally constitut ed under the statute does not function according to the statute, then they defeat the very purpose of the Constitu tion.
Reference in this connection may be made to the deci sion of their Lordships of the Privy Council in Fakira vs King Emperor (1).
In that case section 377 (1) A.I.R. 1937 P.O. 119.
503 of the Code of Criminal Procedure as modified and as ap plicable to Hyderabad stood as follows : "In every case so submitted, the confirmation of the sentence or order passed by the Court of the Resident at Hyderabad shall, when such Court consists of two or more Judges, be made, passed and signed by at least two of them." In Fakira 's case the order of confirmation was only made, passed and signed by one of them, though the Court of the Resident consisted of two Judges.
Their Lordships held that the peremptory provisions of section 377 had not been complied with and that the sentence passed had not been validly confirmed.
The appeal was allowed and the case was remitted to the Court of the Resident.
The provisions of section 18 of the are also of a peremptory nature.
Reference may also be made to a case arising under the Bar Councils Act reported in In re An Advocate, Madras(1), where one member of the tribunal under that Act had died and had not signed the report.
It was held that the tribunal ceased to be properly constituted and that the report could not be considered.
For the reasons given above I would quash this award and direct that the Tribunal which is still functioning should readjudge item 18 of the reference and then submit its award on this point to Government.
The employees cannot be held responsible for the method of procedure adopted by two members of the Tribunal.
Each party will have to bear their own costs in this Court.
The appeal is allowed to the extent indicated above.
MUKHERJEA J.
This appeal, which has come up before us on special leave, is directed against an award made by the All India Industrial Tribunal, dated the 19th of January, 1950.
The Tribunal was constituted by the Central Govern ment under section 7 of the and a large number of disputes (1) A.I.R. 1942 Mad.
504 between several Banking companies and their emiployees were referred to it for adjudication.
Amongst these Banking companies were the Bharat Bank Limited, the appellants before us, and the disputes between them and their employ ees, who are respondents in this appeal, related inter alia to a number of cases of retrenchment and victimization which the latter alleged against the former.
The Tribunal held its enquiry in Delhi in respect to the cases which were connected with the Delhi Branch of the appellants and as a result of the same, made their award on 19th January, 1950, holding that 26 persons, who were employees under the appel lants, were improperly dismissed by the latter and should be reinstated.
Further directions were given in the award regarding the salaries and allowances that were to be paid to the dismissed employees.
This award was declared to be binding in terms of the provisions of sections 15 and 19 of the by the Central Government on 30th of January, 1950, and it was directed to remain in operation for a period of one year.
It is against this award that the present appeal has been preferred.
On behalf of the Indian Union which appeared as an intervener in this appeal, as also on behalf of the respond ents, a preliminary objection was taken challenging the competency of the appeal.
The contention put forward by Sir Alladi Krishnaswami Aiyar, who appeared for the inter vener, in substance, is that article 136 of the Indian Constitution, under which special leave was prayed for and obtained by the appellants in this case, does not contem plate or include within its scope an appeal against an award of an Industrial Tribunal which is not vested with, and cannot exercise, judicial powers, and the decision of which cannot, therefore, rank as a judicial determination.
The Industrial Tribunal, it is said, is an administrative body exercising quasi judicial functions and this Court cannot be called upon to exercise the powers of an appellate Court in respect to the decision of a tribunal which is really a part of the administrative machinery of the Govern ment.
505 In reply to this objection, it has been urged by Sir Tek Chand that the Tribunal constitutedunder the is really and in substance, a Court or judicial tribunal which is invested with the power and authority to exercise judicial functions; and in any event, the language of article 136 of the Constitution is wide enough to include an appeal from the award or determination of any tribunal, be it judicial or not.
There are two questions which require consideration on this preliminary point.
The first is, whether the award or decision of an Industrial Tribunal constituted under the is a judicial decision in the proper sense of the expression or is it the pronouncement of an administrative or quasi judicial body which may exercise some of the functions of a Court of law but is really not so ? The other question turns upon the construction to be put upon article 136 of the Constitution particularly on the meaning to be given to the words 'tribunal ' and 'determina tion ' occurring therein; and the question is whether the language is wide enough to include an adjudication or award of an Industrial Tribunal.
As regards the first question, it is to be noticed that owing to the intricate and complex system of Government that exists in a modern State and the vast expansion of social legislation of all sorts that have taken place in England and in other countries including our own, within the last few decades, the so called administrative and quasi judicial tribunals have come to be a permanent feature of our social and political system.
They function as adjudicating bodies in disputes concerning a large number of economic and.
social affairs.
In a sense they are governmental bodies appertaining to the executive and not to the judicial branch of the State, though in various matters they are armed with judicial powers analogous to those normally carried out by Courts of law.
The question is, what are the tests or distinguishing features, if any, which distinguish an admin istrative tribunal from a Court of law.
Once we are able to formulate these tests, we would be 506 in a position to determine whether a Tribunal functioning under the is or is not a judicial tribunal properly so called.
Whether a particular function or activity is judicial or not is often a difficult question to decide.
The point was elaborately dealt with by Lord Sankey who delivered the judgment of the Privy Council in Shell Co. of Australia vs Federal Commissioner of Taxation (1).
The question raised in that case was whether the Board of Review, which was set up in 1925 under the Commonwealth Income Tax legislation, was a Court exercising judicial powers of the Commonwealth ? The High Court of Australia decided by a majority that it was an administrative and not a judicial tribunal and this majority judgment was affirmed in appeal by the Privy Council.
Lord Sankey remarked in course of his judgment that "the decided cases show that there are Tribunals which possess many of the trappings of a Court but which, nevertheless, are not Courts in the strict sense of exercising judicial power.
Mere externals do not make a direction by an ad hoc tribunal to an administrative officer, an exercise by a Court of judicial power.
" The actual decision in the case rested on the ground that the Board of Review could not be a judicial tribunal, as its orders were not conclusive for any purpose whatsoev er.
The decision, it seems, has only a negative value.
The Lord Chancellor enumerated a series of negative propositions which stated inter alia that a tribunal is not necessarily a Court because two or more contending parties appear before it, nor because it hears witnesses, or gives a final deci sion which affects the right of the parties.
What the real or positive test is, the Privy Council did not care to formulate, though the judgment quoted, with approval, cer tain observations of Griffith C.J. given in another Austra lian case, namely, Huddart Parker & Co. vs Moorehead(" '), which to some extent neutralised the effect of the negative tests enumerated in the judgment.
The observations of Grif fith C.J. are as follows : (1) (2) ; , at p. 357.
507 "I am of opinion that the words 'judicial power '. mean the power which every sovereign authority must have of necessity to decide controversies between its subjects, or between itself and its subjcets, whether the rights relate to life, liberty or property.
The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.
" It may be stated that the authority to hear and decide on evidence between a proposal and an opposition though it is one of the most essential of judicial powers, may be present is an administrative tribunal also.
In the majority of cases, administrative bodies are also armed with the powers of a Court of Justice in summoning witnesses, admin istering oaths and punishing disobedience to its order made for the purpose of effecting its enquiries (1).
As a matter of fact, it is usual to find that those features which were at one time attached exclusively to activities carried on in a Court of law are being extended to committees, commissions or boards conducting enquiries under directions or supervi sion of the Government.
The presence or absence of these features, therefore, does not furnish any conclusive test to determine whether a particular body is a judicial body or not.
In the observations of Griffith C.J. quoted above, the learned Chief Justice laid stress on the power to make a binding and authoritative decision as the essential element in the exercise of judicial power.
The exact meaning and implication of these expressions were the subject matter of discussion in later Australian cases and it was held by the majority of the Judges in Rola Co. (Australia) Pty.
Limited vs The Commonwealth (2), that t. hey do not simply mean that if an authority is given power to decide controverted ques tions of fact and its determination is made binding on the parties to the controversy, it would be sufficient to show that judicial power was entrusted to such authority.
A determination, it was pointed out, may be binding on the parties (1) Vide W F. O 'Connor vs Waldron at p, 82. ; 508 in the same sense as a contract is binding on them.
What is necessary is that the determination by its own force and without the aid or instrumentality of any other authority or power must affect the rights and obligations of the parties; or in other words, the decision itself irrespective of the facts decided, must create rights and impose obligations; and it should be enforceable as such under the ordinary law of the land.
This undoubtedly is one of the fundamental tests which distinguishes a judicial body from one which exercises administrative or quasi judicial functions.
Some times the decision or report of the administrative tribunal becomes operative after it is accepted by the head of the department under which the tribunal conducted its enquiries and it is then enforced by some sort of administrative process; or it might create rights between the parties which have to be sued upon in the ordinary way in a Court of law and it is only on the basis of a judgment or decree that is obtained in such action that relief could be had by the party.
The essence of judicial determination is that nothing further remains to be done except the enforcement of the judgment, a step which is compelled automatically by the law of the land.
The other fundamental test which distinguishes a judicial from a quasi judicial or administrative body is that the former decides controversies according to law, while the latter is not bound strictly to follow the law for its decision.
The investigation of facts on evidence adduced by the parties may be a common feature in both judicial and quasi judicial tribunals, but the difference between the two lies in the fact that in a judicial proceeding the Judge has got to apply to the facts found, the law of the land which is fixed and uniform.
The quasi judicial tribunal on the other hand gives its decision on the differences between the parties not in accordance with fixed rules of law but on principles of administrative policy or convenience or what appears to be just and proper in the circumstances of a particular case.
In other words, the process employed by an administrative tribunal in coming to its decision is not what is known as 'judicial 509 process ' (x).
Sir Maurice Gwyer in his deposition before the Committee on Minister 's Powers appointed by the English Parliament in 1929 stated that "a clear distinction is to be drawn between judicial and quasijudicial powers.
" The 'judicial power ' was defined by the witness as a power to decide a question of legal right in a dispute between par ties involving either a finding of fact or the application of a fixed rule or principle of law or involving both.
"The quasi judicial power," he defined as meaning "the power of giving decisions on questions of differences of an adminis trative and not justiciable character which cannot be deter mined by reference to any fixed law or principle of law but are matters of administrative discretion and judgment "(2).
In Cooper vs Wilson (3), Scott L.J. quoted with approval and adopted as the basis of his judgment the following passage from the report of the above committee: "A true judicial decision presupposes an existing dis pute between two or more parties, and then involves four requisites : (1) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertain ment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal argument by the parties; and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law.
A quasi judicial decision equally presupposes an existing dispute between two or more parties and involves (1) and (2) but does not necessarily involve (3) and never involves (4).
The place of (4) is in fact taken by administrative action, the character of which is determined by the Minister 's free choice.
" (1) See Robson 's Justice and Administrative Law, p. 74.
(2) Vide Committee of Minister 's Powers, Minutes of Evd., Vol.
II, pages 15 16 and also Robson 's Justice and Adminis trative Law, p. 319.
(3) 510 In our opinion these statements correctly bring out the distinction between a judicial tribunal and an administra tive body which exercises quasi judicial functions.
These being the essential features which distinguish the two classes of tribunals, we would have to ascertain with refer ence to the provisions of the , which class or category of tribunals an Industrial Tribunal comes under.
The object of the , as set out in the preamble, is "to make provisions for investigation and settlement of industrial disputes and for certain other purposes hereinafter appearing.
" The word "settlement" suggests the idea of establishing compromise between the interests of disputing parties.
There are three classes 'of authorities provided for by the Act who are entrusted with the powers and duties of investigation and settlement of industrial disputes.
First of all, there are conciliation officers or Boards of Concil iation, whose duties mainly are to induce parties to come to a fair and amicable settlement amongst themselves.
Second ly, there are Courts of Enquiry and though they are ' de scribed as Courts, their duties end with investigation into the matters referred to them and submitting reports there upon to the appropriate Government.
Lastly, there are Industrial Tribunals composed of independent persons who either are or had been Judges of a High Court or District Judges or are qualified for appointment as High Court Judges.
It will be seen from the descriptions given above that the Board of Conciliation or Court of Enquiry constituted under the could, on no account, be regarded as judicial tribunals.
To enable them to investi gate facts they are however armed with certain powers of compelling attendance of witnesses and production of docu ments etc.
These provisions are to be found in section 11 of the Act.
The significant thing to note is, that there is no distinction made in this respect between Conciliation Boards and Courts of Enquiry on the One hand and Industrial Tribunals on the other.
The same powers are conferred 511 the three classes of authorities without any distinction whatsoever and sub section (3) of section 11 further lays down that any enquiry or investigation by a Board, Court of Enquiry or Tribunal shall be deemed to be a judicial pro ceeding within the meaning of sections 193 and 228 of the Indian Penal Code.
This means that proceedings before an Industrial Tribunal or for the matter of that before the other two bodies also could be deemed to 'be judicial pro ceedings only for certain specified purposes.
The express provision making the proceedings judicial proceedings for those purposes only emphasises that they are not judicial proceedings otherwise.
Under section 15 (1), the Industrial Tribunal has got to submit its award to the appropriate Government and sub section (2) lays down that on receipt of such an award, the appropriate Government shall by order in writing declare the award to be binding.
A different provision has been made in regard to cases where the Government itself figures as a party to the dispute.
In such cases, if the Government considers it inexpedient on public grounds to give effect to the award either in whole or in part, it may, at the earli est opportunity, lay the award for consideration before the Provincial or Central Legislative Assembly as the case may be and the Legislative Assembly may.
by its resolution confirm, modify or reject the award.
After the resolution is passed, the Government is to declare the award so con firmed or modified to be binding [see sub section (3)].
Sub section (4) of section 15 expressly lays down that an award declared to be binding under any two of the previous sub sections shall not be called into question in any manner whatsoever.
The Government is not merely to declare the award binding but under section 19 (3), it has got to speci fy the date when the award would come into force and also to fix the period during which it would remain binding, and this period shall not exceed one year.
It will be seen, therefore, that there is nothing in the from which it could be inferred that the Industrial Tribunal really functions as a Court exercis ing judicial functions.
Regarding 512 the trappings or the external indicia of a Court, its i position is almost the same as that of the Board of Con ciliation or Court of Enquiry and Bakshi Sir Tek Chand concedes that the latter are not judicial tribunals at all.
The powers of an Industrial Tribunal are certainly wider than those of the other bodies, but it has no power to make a final pronouncement which would proprio vigore be binding on, and create rights and obligations between the parties.
It is for the appropriate Government to declare the award to be binding and the part which the Government plays in such matters is not a mechanical part merely, for the award can really become operative only when the date of its commence ment and the period of its duration are fixed, and it is for the Government and Government alone to.
fix the same.
With regard to the other class of cases, where the Government itself is one of the parties to the dispute, the position is still worse.
An award in such cases is always subject to the contingency of being rejected or modified by the legis lature before whom it could be placed for consideration at the option of the Government.
Where a contingency like this is attached to an award, it can never be regarded as a final or binding decision which is of the essence of a judicial proceeding.
The fact that in cases of disputes between private employers and their workmen, the Government has to accept the award as it is, makes no difference in principle.
Possibly, this rule was made in consideration of the status and training of the people who constitute the Tribunal, but nevertheless the determination cannot acquire any authority or force, so long as the appropriate Government does not make the declaration and fix the time of its operation as mentioned above.
In regard to the other class of awards, where the Government is one of the disput ing parties, the award on the face of it is neither the final nor the authoritative pronouncement on the matter in dispute, and it is always in the powers.
of one of the disputing parties to subject it to further scrutiny at the hands of the legislature who can reject the whole award or effect such changes in it as it considers proper.
This shows the real nature of the Tribunal and it is not and 513 could not be suggested that the Industrial Tribunal is a Tribunal which exercises judicial functions when the dispute is only between private employers and their workmen, and it ceases to be such when the employer is the Government it self.
We would now examine the process by which an Industrial Tribunal comes to its decisions and I have no hesitation in holding that the process employed is not judicial process at all.
In settling the disputes between the employers and the workmen, the function of the Tribunal is not confined to administration of justice in accordance with law.
It can confer rights and privileges on either party which it con siders reasonable and proper, though they may not be within the terms of any existing agreement.
It has not merely to interpret or give effect to the contractual rights and obligations of the parties.
It can create new rights and obligations between them which it considers essential for keeping industrial peace.
An industrial dispate as has been said on many occasions is nothing but a trial of strength between the employers on the one hand and the workmen 's organization on the other and the Industrial Tribunal has got to arrive at some equitable arrangement for averting strikes and lock outs which impede production of goods and the industrial development of the country.
The Tribunal is not bound by the rigid rules of law.
The process it employs is rather an extended form of the process of collective bargaining and is more akin to administrative than to judi cial function.
In describing the true position of an Industrial Tribu nal in dealing with labour disputes, this Court in Western India Automobile Association vs Industrial Tribunal, Bom bay, and others(1) quoted with approval a passage from Ludwig Teller 's well known work on the subject, where the learned author observes that "industrial arbitration may involve the extension of ,existing agreement or the making of a new one or in general the creation of new obligations or modification of old ones, while commercial arbitration generally (1) at p. 345.
514 concerns itself with interpretation of existing obligations and disputes relating to existing agreements.
" The views expressed in these observations were adopted in its entire ty by this Court.
Our conclusion, therefore, is that an Industrial Tribunal formed under the is not a judicial tribunal and its determination is not a judicial determination in the proper sense of these expres sions.
We now come to the other question as to whether an appeal could be taken to this Court against an award of an Industrial Tribunal by special leave under article 136 of the Constitution.
Article 136 is a part of Chapter IV of the Constitution which deals with the Union Judiciary.
The different jurisdictions of the Supreme Court have been prescribed in a series of articles commencing from article 131.
Article 131 defines the original jurisdiction of the Supreme Court.
Article 132 deals with its appellate powers in cases where substantial questions of law as to the inter pretation of the Constitution are involved.
Article 133 contains the provision relating to appeals in civil cases from judgments, decrees and orders of the High Courts;and article 134 makes provisions relating to criminal appeals.
Article 135 lays down that the Supreme Court shall have jurisdiction and powers with respect to any matter not covered by articles 133 and 134, if such jurisdiction and power could have been exercised by the Federal Court prior to the coming into force of the present Constitution.
Then comes article 136 which runs as follows: "(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
" The article is worded in the widest terms possible.
It vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals by granting of special leave against any kind of judgment, decree or order made by any Court or tribunal in any 515 cause or matter and the powers could be exercised in spite of and overriding the specific provisions for appeal con tained in the previous articles.
The controversy so far as the present case is concerned mainly centers round the interpretation to be put upon two words, namely, "determi nation" and "tribunal" used in the article.
Does the word "tribunal" mean a judicial tribunal only and is the expres sion "determination" restricted to what is known as "judi cial determination"? Sir Alladi 's contention is that in interpreting these words we should follow the principle of ejusdent generis.
"Determination," he says, must be taken to be judicial determination which is of the same nature as decree, judg ment, order or sentence; and "tribunal" associated with the word" Court" could not but mean "judicial tribunal.
" Bakshi Sir Tek Chand on the other hand lays stress on the fact that the word "determination" was not in the origi nal draft Constitution, and it was subsequently added, presumably with a view to widen the scope of article 136 and include within it, the decisions of administrative and quasi judicial tribunals also.
He points out that according to the definition given in section 2 (b) of the , "award" means a determination either interim or final of an industrial dispute by an Industrial Tribunal.
There is undoubtedly something to be said in favour of both these views.
The difficulty, in our opinion, arises from the fact that neither of these terms "determination" or "tribunal" has a fixed or definite connotation in ordinary language.
The word "determination" means and signifies the ending of a controversy or litigation by the decision of a Judge or Arbitrator.
It cannot be said that it is restrict ed exclusively to proceedings in court.
Likewise, the dictionary meaning of the word "tribunal" is 'court of justice ' or 'seat of a Judge. ' By 'Judge ' we mean some authority by which contested matters are decided between rival parties.
Here again, it is not possible to say that the expression is applicable only to a 66 516 regular court of law.
If the tribunal is a full fledged judicial tribunal, it is not disputed that its decisions would be proper subject matter of appeal under article ,136 of the Constitution.
The question is whether this article includes within its scope the determinations of quasi judicial tribunals as well.
Our view is that ordinarily we should not put any re stricted interpretation upon the plain words of an article in the Constitution and thereby limit our powers of granting special leave for appeals, which the Constitution for best of reasons did not choose to fetter or circumscribe in any way.
At the same time, we must admit that some sort of restricted interpretation may be unavoidable in view of the context in which particular words appear; and certain re strictions may be implicit in the very purpose for which article 136 has been framed.
Article 136 empowers us in our discretion to hear appeals from pronouncements of all infe rior courts and tribunals.
With regard to law courts, no difficulty arises.
As regards tribunals which are not courts in the proper sense of the expression, it may not be proper, in our opinion, to lay down a hard and fast rule that no appeals could, on any account, be allowed against determina tions of such tribunals.
There are numerous varieties of these adjudicating bodies, whose structures vary greatly in character and composition and so do the powers and functions which they exercise.
The best thing to do would be to examine each type of cases as it arises and if we find that with regard to determinations emanating from certain tribu nals it is not possible for us to exercise fully and effec tively the powers of an appellate Court, such determinations must be held to lie outside the purview of article 136 of the Constitution.
This disability in the matter of exercising our powers as an appellate Court might arise from the fact that the rules and principles by which we ordinarily judge the sound ness or otherwise of judicial decisions are not capable of being applied to the determinations of certain administra tive tribunals.
It might also arise from the fact that the law under which the 517 tribunal functions prevents us from making any effective order which would be binding and operative of its own force without the intervention of some other power or authority; or there may be some kind of contingency attached to it.
In our opinion, these difficulties do confront us in the entertaining or hearing of an appeal against the decision of an Industrial Tribunal.
In the first place, as we have said above, the determination of an Industrial Tribunal does not become complete and binding unless and until it is declared to be so by the appropriate Government.
Till the Government makes such declaration, neither of the parties to the dis pute can have any real reason for filing an appeal.
An appeal, if it lies, could be filed after the determination has been declared binding.
But in such cases, is it the determination of the Tribunal merely which is challenged by way of appeal or is it ' the determination by the Tribunal to which has been super added a declaration by the Government ? The decision in the appeal would undoubtedly affect not merely the decision of the Tribunal but that of the Govern ment as well which is certainly not a tribunal within the meaning of article 136.
Assuming again that the award is set aside and we substitute our own determination in place of the award given by the Tribunal, will our award be enforce able by itself or will it require a declaration by the Government to make it binding ? If Government is itself a party to the dispute, will it be open to Government to place our decision for consideration by the Legislative Assembly? And will the Legislative Assembly be competent to reject or modify our award ? These problems arise because under sec tion 15 the award under the Act becomes binding only when the Government declares it to be so and if our judgment takes the place of the award of the Tribunal, all the in firmities that attach to the award must necessarily attach to our judgment also.
The other difficulty is no less formidable.
As said above, the Tribunal is not bound to decide the disputes by application of the ordinary law of the land.
A good deal depends upon questions of policy 518 and public convenience.
It is not possible for us to.judge the propriety of the decision by a reference to some stand ard or fixed rules and we think that the very policy of the law prevents us from interfering with the discretion exer cised by the Tribunal.
Where the direction is committed to any body or a tribunal exercising quasi judicial functions which are not lettered by ordinary rules of law, the tribunal should in the absense of any provision to the contrary be deemed to have the final authority in the exercise of that discretion.
We cannot sit in appeal over their decision and substitute our own discre tion for theirs.
,Questions, however, may and do arise where such quasi judicial body attempts to usurp jurisdiction which it does not possess.
It may assume jurisdiction under a mistaken view of law or refuse to exercise jurisdiction properly by adoption of extraneous or irrelevant considera tions;or there may be cases where in its proceedings the tribunal violates the principles of natural justice.
In all such cases the most proper and adequate remedy would be by writs of certiorari or prohibition and the Court having authority may direct that the decision of the body or tribu nal might be brought up to be quashed for lack of jurisdic tion or for mistake apparent on the face of it; and if the proceedings had not terminated at that time, a writ of prohibition may also be issued for preventing the tribunal from exceeding its jurisdiction.
The issuing of such writs would not be an exercise of appellate powers which means the rehearing of the case and passing of such judgment which in the opinion of the appellate Court the original tribunal should have made.
The object of these writs is simply to keep the exercise of powers by these quasi judicial tribu nals within the limits of jurisdiction assigned to them by law and torestrain them from acting in excess of their authority.
These principles are well settled and require no elucidation(1).
Our conclusion, therefore, is that article 136 of the Constitution does not contemplate a determination given by the Industrial Tribunal.
(1) Rex vs Electricity Commissioners ; Board of Education vs Rice 519 Even assuming for argument 's sake that we have got jurisdiction under article 136, the exercise of which would depend upon the circumstances of each case, in view of the reasons which we have set out above, this is not an appeal which, in our opinion, should be admitted even if we have the power to do so.
The result is that the preliminary objection succeeds and the appeal fails and is dismissed with costs.
PATANJALI SASTRI ' J.
I entirely agree with the judgment just now delivered by Mukherjea J. and I have nothing to add.
Appeal dismissed.
Agent for the Union of India: P.A. Mehta.
[/INST]The respondents are registered dealers carrying on the business of tanning hides and skins and selling the tanned skins.
The authorities under the Hyderabad General Sales Tax Act, 1950 assessed the respondent for the total turnover which included the price paid by the respondent for purchasing tanning bark used in the tanning process.
The respondent contended that the price paid for the purchase of tanning bark should be excluded from the taxable turnover because the tanning bark was bought by the respondent for consumption and not for sale and hence the respondent was not "dealer" qua the tanning bark.
His contention was not accepted by the Tax authorities.
In a petition to the High Court under section 22(1) of, the Hyderabad General Sales Tax Act the contention of the respondent was accepted and the assessment was modified.
In appeal filed with special leave, Held: The High Court was in error in holding that a purchaser is liable to pay tax under r. 5(2) of the Sales Tax Rules only when he is carrying on a business of buying and selling a commodity specified in sub r.
(2) and not when he buys it for consumption in a process for manufacturing a commodity to be sold by him.
(ii) To regard an activity as a business there must be a course of dealing either actually continued or contemplated.
to be continued with a profit motive and not for sport or pleasure.
But to be a dealer a person need not follow the activity of buying, selling and supplying the same commodity.
The Act requires merely that buying of the commodity mentioned in r. 5(2) must be in the course of business; that is it must be for sale or use with a view to take 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.
(iii) In the present case the tanning bark was not bought by the respondent for any purpose unconnected with the business.
Consumption of the tanning bark in the manufacturing process did not therefore exclude the respondents from the definition of dealer qua the tanning bark.
Sadak Thamby and Company vs State of Madras, 14 S.T.C. 753, approved.
</s>
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<s>[INST] Summarize the judgementCivil Appeal No. 732 of 1975.
Appeal by Special Leave from the Judgment and Order dated the 19th March, 1975 of the Allahabad High Court in Civil Misc.
Writ No. 5935 of 1974.
R. K. Garg, section C. Agarwala, V. J. Francis, T. M. Ansari for the Appellants.
M. C. Bhandare, R. Nagarathnam, section Bhandare, for Respondent No. 1.
The Judgment of the Court was delivered by ALAGRISWAMI, J.
To fill up a casual vacancy in the office of the President of the Municipal Board, Soron in the district of Etah in Uttar Pradesh, the District Magistrate issued notices to he members of the Board informing them that nomination papers should be filed in his of lice by 26th of September, 1974 and if necessary the election will take place on 1st October, 1974.
The 1st respondent thereupon filed a petition under Article 226 of the Constitution challenging the validity of the procedure adopted by the District Magistrate for holding the election and prayed for an order to the District Magistrate not to hold the election on 1st October, 1974.
The election programme had been notified in the U.P. Gazette dated 21 9 74 but it was published in the Gazette dated 24 9 74.
The objection to the procedure for election was based on the allegation that it did not conform to the provisions of Rule 6 of the U.P. Municipalities (Conduct of Election of Presidents and Election Petitions) Order, 1964, which reads as follows: "6.
Appointment of date for nomination, etc. (1) As soon as may be after the election of members of a board is completed at a general election within the meaning of section 43 of the Act or a equal vacancy occurs in the office of President of a board.
the District Magistrate shall, by notification in the official Gazette, appoint for the election to the office of President of the Board.
(a) the date for making nominations which shall be a date at least four days after the date of notification; and (b) the date for scrutiny of nominations which shall be me date next following the date fixed under clause (a); and (c) the last date for withdrawal of candidatures which shall be the third day after the date fixed for scrutiny of nominations; and 811 (d) the date on which and the hours during which a poll shall, if necessary, be taken: Provided that the date for taking the poll shall be a date not more than five days after the last date fixed under clause (c) .
(2) on the issue of notification under sub para (1), the Returning Officer shall give public notice of the election in Hindi in form I by affixing a copy of the notice at his office and another copy at the office of the Board and in such other manner, if any, as he may think fit and shall also cause to be dispatched by post under certificate of posting a copy of the notice to the last known address of each member.
" Though there was a prayer in the writ petition for all order to the District Magistrate not to hold the election on 1 10 74 the learned Judges who admitted the writ petition directed that the election would be subject to ultimate decision in the writ petition.
Consequently the election took place on the 1st of October and the 1st Appellant was declared elected.
Thereafter the 1st respondent filed an application for impleading the 1st appellant and the Municipal Board as parties and also claimed a further relief for quashing the election proceedings that took place on the 1st of October, 1974.
The learned Judges allowed the petition and set aside the entire election proceedings relating to the election of the 1st Appellant as the President of the Municipal Board.
We are of the opinion that the whole approach of the learned .
Judges of the High Court to this problem was mistaken.
After the decision of this Court in N. P. Ponnuswami vs Returning Officer, Namakkal Constituency & Ors.(1), there is hardly any room for Courts to entertain applications under Article 226 of the Constitution in matters relating to elections.
Before dealing with this question we may set out section 43 B of the U.P. Municipalities Act, which is the provision of law dealing with cases where the election of the President is questioned: "43 B. Judicial officer to decide the question of validity of election to the office of President. (1) No election of the President shall be called in question except by any election petition presented in accordance with the provisions of this Act.
(2) An election petition may be presented by any member entitled to vote at the election or by a candidate who has been defeated at the election on one or more of the following 'grounds, that is to say (a) that the returned candidate has committed any corrupt practice within the meaning of section 28; (1) ; 812 (b) that the nomination of, any candidate has been wrongly rejected, or the nomination of the successful candidate or any other candidate who has not withdrawn his candidature has been wrongly included; (c) that the result of the election has been materially affected by (i) the improper rejection or refusal of a vote, or (ii) any non compliant with the provisions of this Act or of any rules or orders made under this Act.
(3) An election petition shall be presented to the District Judge, or in a district where there is no headquarters of the District Judge, to the Civil Judge, within whose jurisdiction the municipality to which the election petition relates is situate: Thus the only way by which the election of a President can be called in question is by means of an election petition Presented in accordance with the provisions of this Act.
The election itself can be questioned only on one of the three grounds mentioned above.
The only ground in the present case on the basis of which the election of the appellant was questioned is that there was a non compliance with the provisions of rule 6, already referred to.
Under the Act the non compliance with any rule or order made under the Act or any provision of the Act does not ipso facto result in the election being set aside.
That result can be set aside only if the election Tribunal comes to the conclusion that the result of the election has been materially affected by such noncompliance.
The jurisdiction to decide the validity of the election of a President is an exclusive one conferred on the District Judge.
In the circumstances there was no room for the High Court exercising its powers under Article 226 in order to set aside the election.
In keeping aside the election the High Court plainly erred because it did not consider whether the result of the election had been materially affected by non compliance with the rule in question.
In any case that is a matter within the exclusive jurisdiction of the District Judge.
As early as 1928 in its decision in Desi Chettiar vs Chinnasami Chettiar(1) the Madras High Court observed: "It is clear that there is another side of the question to be considered, namely, the inconvenience to the public administration of having elections and the business of Local Boards held up while individuals prosecute their individual grievances.
We understand the election for the elective seats in this Union has been held up since 31st May because of this petition, the result being that the electors have been unable since then to have any representation on the Board, and the Board is functioning, if indeed it is functioning, with a mere (1) A. 1.
R. 813 nomination fraction of its total strength; and this state of affairs the petitioner proposes to have continued until his own personal grievance is satisfied".
These observations were quoted with approval by this court in Ponnuswami 's case (supra) In that decision this Court arrived (supra).
In that decision this Court arrived at the following conclusions: "(1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognised to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till, after the elections are over, so that the election proceedings may not be unduly retarded or protracted.
(2) In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the "election"; and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the "election" and enable the per son affect ed to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress.
" In absence of any express provisions in the Act to the contrary these principles are applicable equally to cases of elections to local bodies also.
This Court also pointed out that the right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it.
It referred to the decision in Wolverhampton New Water Works Co. vs Hawkesford(1) where it had been held: "There are three classes of cases in which a liability may be established founded upon statute.
One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy.
The second class o cases is, where the statute gives the right to sue merely, but provides not particular form of remedy: there, the party can only proceed by action at common law.
But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy (1) 814 for enforcing it.
The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class.
The form given by the statute must be adopted and adhered to." and after referring to the provisions of the Representation of the People Act pointed out that it will be a fair inference that the Act provides for only one remedy, that remedy being by an election petition to be presented after the election is over, and there is no remedy provided at any intermediate stage.
This Court also held that the word 'election ' connotes the entire procedure to be gone through to return a candidate whenever we talk of elections in a democratic country.
It follows that the right to vote or stand for election to the office of the President of the Municipal Board is a creature of the statute, that is, the U.P. Municipalities Act and it must be subject to the limitations imposed by it.
Therefore, the election to the office of the President could be challenged only according to the procedure prescribed by that Act and that is by means of an election petition presented in accordance with the provisions of the Act and in no other way.
The Act provides only for one remedy, that remedy being an election petition to be presented after of the election is over and there is no remedy provided at any intermediate stage.
These conclusions follow from the decision of this Court in Ponnuswami 's case (supra) in its application to the facts of this case.
But the conclusions above stated were arrived at without taking the.
provisions of Article 329 into account.
The provisions of Article 329 are relevant only to the extent that even the remedy under Article 226 of the Constitution is barred as a result of the provisions.
But once the legal effect above set forth of the provision of law which we are concerned with is taken into account there is no room for the High Courts to interfere in exercise of their powers under Article 226 of the Constitution.
Whether there can be any extraordinary circumstances in which the High courts could exercise their power under Article 226 in relation to elections it is not now necessary to consider.
All the considerations applied in coming to the conclusion that elections to the legislatures should not be delayed or protracted by the interference of Courts at any intermediate stage before the results of the election are over apply with equal force to elections to local bodies.
[/INST]By an order dated 31st December, 1968, the sales tax officer found from the turnover of the respondent firm as revealed from the quarterly returns filed by the assessee that is disclosed an assessable income.
He proceeded to make a provisional assessment in respect of the portion of the assessment year 1968 concerned purporting to act under section 7A of ' the U.P. Sales Tax Act.
The respondent challenged the same before the High Court praying that the sales tax officer had no jurisdiction to make a provisional assessment, because the assessee had in fact filed a return.
The High Court of Allahabad accepted the contention and quashed the order of the sales tax officer.
The High Court hold that as conditions mentioned in section 7(3) did not apply to the facts of the case in as much as it was not a case in which the assessee had not filed a return at all, no assessment could have been made by the sales tax officer.
Allowing the appeal by special leave, ^ HELD: Section 7A clearly authorises the assessing authority to make provisional assessment in respect of the assessment year to the best of his judgment, and does not contain any pre conditions at all.
On the other hand it applies the provisions of the Act which includes the provisions of section 7(3) which is the provision that confers power on the assessing authority to make an assessment to the best of his judgment.
It is true that sub rule (3) of rule 41 contains a provision that the provisional assessment to the best of the judgment can be made where no return is submitted, but this rule has to be read as supplemental to the provisions of the parent Act.
What this rule implies is that whether the return is filed by the assessee or not, the assessing authority will have the power to make provisional assessment.
There is no inconsistency between section 7A and rule 41(3) of the Rules framed under the Act.
[778 A B, D F]
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<s>[INST] Summarize the judgementl Appeals Nos. 1239 to 1241 of 1966.
Appeals by special leave from the Award dated October 1, 1965 of the Industrial Tribunal, Maharashtra, Bombay in Reference (I.T.) Nos. 84, 112 and 121 of 1959.
K. T. Sule, M. G. Phadnis and Vineet Kumar, for the appel lants (in all the appeals).
G. B. Pai, P. N. Tiwari and P. K. Rele, for the respondents (in all the appeals).
3 7 5 P. Jaganmohan Reddy, J.
These three Appeals are by the P. Jaganmohan Reddy,J.
These three appeals are by the Workmen of the three Respondent Companies respectively Civil Appeal No. 1239 of 1966 is against Greaves Cotton & Co. Ltd., Civil Appeal No. 1240 of 1966 is against Greaves Cotton & Crompton Parkinson Pvt. Ltd., (later amalgamated in 1966 and a new Company formed as Crompton Greaves Ltd.), and Civil Appeal No. 1241 of 1966 is against Kenyon Greaves Pvt. Ltd. On the 29th April 1958 a charter of demands was presented by the Workmen through their Trade Union Greaves Cotton and Allied Companies Employees Union to the Respondents in the above three Appeals and to Russian & Hornby India Pvt.
Ltd. These demands were in respect of the wage scale, dearness allowance, leave gratuity etc.
After the conciliation proceedings under sub section (4) of Section 12 of the (hereinafter called the 'Act ').
had failed, the disputes in respect of the aforesaid matters were ultimately referred by the Maharashtra Government to Shri P. D. Sawarkar for adjudication under Section 10 (1) (d) read with 12 (5 ) of the Act.
In respect of demands made against Greaves Cotton & Co. Ltd., the reference was made on 8 4 59 and 24 12 59; against Greaves Cotton & Crompton Parkinson Pvt. Ltd. on 30 5 59 and 24 12 59 and that against Kenyon Greaves Pvt. Ltd., on 8 6 59 and 9 1 60 respectively.
We are here not concerned with the other references.
By an Award dated 3rd June, 15th and 16th June 1960 the Sawarkar Tribunal revised the wage scales and dearness allowance of all workmen employed by those Companies.
Ruston & Hornby India Pvt. Ltd. appealed against the Awards to this Court which by a common Judgment dated 14th November 1963 held that the wage scale and dearness allowance fixed by the Industrial Tribunal for the clerical and subordinate staff did not require any interference and to that extent dismissed the Appeal.
It however set aside the wage scale and dearness allowance fixed for factory workmen and remanded the matter to the Tribunal for fresh fixation of wage scale and dearness allowance with these observations : "We allow the Appeal with respect to the factory workmen and send the case back to the Tribunal for fixing the wage structure including basic wages and dearness allowance and for granting adjustments in the light of the observations by us.
The new Award pur suant to this Award will come into force from the same date namely April 1, 1959".
When the references were taken up by the Tribunal on remand the parties agreed that in view of the decision of this Court certain 3 76 references stood finally disposed of namely references dated 24th December, 1959 by the Workmen in Greaves Cotton & Co. Ltd., and in Greaves Cotton & Crompton Parkinson Pvt. Ltd. and that dated 9th January 1960 by the workmen of Kenyon Greaves Pvt.
Ltd. The other three which were also held to be finally disposed of were against the Workmen of Ruston & Hornby India Pvt. Ltd. with which we are not concerned in this Appeal.
The parties however, agreed that only three references dated 8th April, 1959, 30th May 1959 and 8th June, 1959 by workmen against Greaves Cotton & Co. Ltd., Greaves Cotton & Crompton Parkinson Pvt. Ltd., and Kenyon Greaves Pvt. Ltd. survive.
During, the proceedings before the Tribunal two questions were raised (1) Whether the Supreme Court remanded the matter for consideration of the dispute in respect of certain categories of employees including those of the Supervisors; and (2) Whether it was open to the Respondents to claim fixation of service conditions on the basis of individual units.
On behalf of the employees it was contended that the dispute regarding the Foremen or Supervisors who were included in the term subordinate staff was concluded by the Judgment of the Supreme Court inasmuch as it had dismissed the Appeal in respect of Clerical and subordinate staff.
The employers on the other hand contended that the reference was in respect of the six categories of Workmen specified in the Supreme Court Judgment which included Supervisors.
Shri Athalye who was the then Judge of the Industrial Court after hearing the parties made an order on 14th July 1964, inter alia holding : (1) That the Companies were precluded from agitating that wage scales in the different factories should be fixed on the basis of individual units; and (2) that the Sawarkar Award was set aside by this Court in respect of all workmen except those who could be properly classified as office staff.
After this order the Respondents were asked to file statements regarding comparative wage scales of Supervisors, in their concerns as well as in other concerns.
These statements were filed without prejudice to their contention that the Tribunal had no jurisdiction to fix wage scale in respect of Supervisory staff.
The documents filed on behalf of the third Respondent namely Kenyon Greaves Pvt Ltd., showed that it did not employ any staff in the Supervisory grade.
Thereafter the references were heard by Shri Paralkar who had succeeded Shri Athalye as Judge, 377 Industrial Tribunal.
It was contended before him that the Foreman (Supervisors) were not workmen within the definition given in the Act and that no wage scales in respect of the Supervisors in the Respondent Companies should be fixed.
The stand taken by the Appellant was that it was not open to the Respondent Companies to raise the question whether the Supervisors were Workmen within the meaning of the Act as it did not arise on the remand orders made by this Court.
In the alternative it was contended that many Supervisory work men, concerned in the dispute were drawing a total salary below Rs. 500 'and that even if everyone of them was promoted from the category of supervisors or for the sake of argument it was held that Foremen and Supervisory staff were not workmen within the meaning of the Act, the Workmen had a right to raise a dispute regarding wage scale and dearness allowance of the Supervisory staff because they have a communist of interest with them.
The Tribunal therefore had jurisdiction to entertain the depute in respect of wage scales and dearness allowance of the Supervisory staff.
The Appellant also contended on behalf of the Workmen that the only question that was pending before the Tribunal was to fix wages for factory workmen and therefore the Tribunal had no jurisdiction to decide at that stage as to which category the workmen belonged.
The Tribunal by its Award of the 1st October 1965 held after hearing the parties that Supervisors were not workmen within the meaning of the Act and that the claim for revision of wage scale and dearness allowance payable to them was in that view rejected.
Against this Award the above Appeals were filed by Special Leave granted by this Court confined only to the point whether the decision contained in paragraph 15 and 16 of the Award was correct.
At the outset it was conceded by the parties that Civil Appeal No. 1241 of 1966 by the Workmen against the Kenyon Greaves Pvt. Ltd. did not survive because there are no persons working in the Supervisory capacities and drawing less than Rs. 500/being the two conditions requisite under Section 2 (s) (iv) of the Act to be a 'Workman the non fulfilment of which would deprive the Tribunal of its jurisdiction to determine the dispute; and therefore the appeal has to be dismissed.
Even in respect of the other two appeals the learned Advocate for the Respondent submits that there are no workman working in the Supervisory capacities and drawing less than Rs. 500/ in the 3 78 other two Undertakings in respect of which the Appeals have been filed and consequently they should also be dismissed.
We shall, however, deal with this submission later on.
Before us five contentions have been urged by the learned Advocate for the Appellant: First whether the case of Supervisors was at all remanded to the Tribunal for adjudication by the Supreme Court; Secondly whether it was open to the Respondents to agitate when the matter was remanded to the Tribunal, for the first time to challenge the jurisdiction of the Tribunal to fix wage scale and dearness allowance of the Supervisors; Thirdly whether Supervisors getting less than Rs. 500/ per month on the crucial date namely the date of reference can raise a dispute regarding wages which take them beyond Rs. 500/ ; Fourthly whether workmen can raise a dispute about non workmen, as regards terms of employment of non workmen and in what circumstances.
Fifthly whether the Tribunal on remand is right in holding that in December 1964, none of the Supervisors were drawing less than Rs. 500/ .
With respect to the first two contentions the Appellant 's learned Advocate submits that in the Special Leave Petition against the Award passed by Mr. Sawarkar neither the wage scales of Supervisors nor any question about the jurisdiction of the Tribunal was raised nor was such a contention urged before this Court in the Appeals which were partly allowed and remanded by this Court.
Even before the Industrial Tribunal, after the remand, when the Respondent Companies in compliance with its orders dated 15 1 54 submitted statements giving the names of workmen including Supervisors (Foremen) which were covered by the reference and gave their details as called for by the said Tribunal, the comments of the Appellants which were submitted on 27 2 64 were that the category of Supervisors was not covered by the order of remand, and the wage scale and dearness allowance for that category have been confirmed by this Court by its judgment dated the 14th November 63.
This was controverted by the Respondents and by further supplementary written statement dated 16 3 64, each of the Respondent Companies, it is alleged, tried to cover up and reagents the matter which had already been settled by this Court regarding uniform service conditions for the entire Greaves Cotton group of Companies on the basis that Greaves Cotton & Co., was the principal Company.
379 Even in these supplementary written statements it is alleged no question was taken up by the Respondent Companies that the Foremen were not workmen within the meaning of the Act.
The Appellant had on 24 3 64 submitted an application to the Industrial Tribunal stating that the supplementary written statements should not be taken on record since the issue in the said supplementary statements regarding uniformity in the wage scale and dearness allowance was decided by this Court.
It also urged that the issue regarding Drivers, Cleaners and apprentices and Supervisors were categories remanded by the Supreme Court for fixing their wage scale should be decided as a preliminary issue.
As we have already stated the Tribunal gave its decision on the two issues which were raised before it after this Court had remanded the matter.
On the other hand it is contended by the Respondents that it is not open to the Appellants to raise this question because the Special Leave having been confined only to the point whether the decision contained in paragraphs 15 and 16 of the Award is correct, it is open to it to urge that the Supervisors were not workmen.
It was pointed out that from Paragraph 15 and 16 of the Award it is evident that the demand for the revision of the wage scale and dearness allowance of the Supervisors even for the lowest grade on the lowest scale made them non workmen as their emoluments exceed Rs. 500/ , which decision also clearly indicates that the question of fixation of the Supervisors wage scale and dearness allowance was remanded to the Tribunal.
It is further stated that this Court had in its Judgment dated 14th November 1963 allowed the Appeal with respect to the 'factory workers ' and sent the case back top the Tribunal for fixing the wage structure for the 'factory workmen ', that it is implicit in the order of remand that the Tribunal would have jurisdiction to determine whether any employee of the factory was or was not a workman within the meaning of the Act; that if the Appellant 's contention is accepted it would virtually mean that this Court by its Judgment had conferred a jurisdiction on the Tribunal to deal with the case of non workmen which the Tribunal under the Act did not possess; and that the question whether there is community of interest between other workmen of the Respondent and Supervisors who may be non workmen is a mixed question of fact and law, which has not been raised before the Tribunal and ought not be allowed to be raised for the first time before this Court.
It is also contended that the question whether some of the workmen could raise a dispute regarding the grades of the Supervisors as there is a community of interest was not the subject matter of the decision in para 15 and 16 of the Award, and that since the wages including dearness allowance of all supervisors at the date of the Award were in excess of 380 Rs. 500/ the question of considering the claims of the Supervisors who were non workmen at the instance of supervisors workmen ,does not arise.
It is not in our view necessary to go into these several contentions except to examine the scope of the Judgment of this Court in Civil Appeals Nos. 272 280 of 1962 dated 14 11 61 by which the remand was made to the Tribunal.
The order is in the following terms : "We therefore dismiss the Appeal so far as retrospective effect and adjustments as also fixation of wages and dearness allowance with respect to clerical and subordinate staff are concerned.
We allow the appeal with respect to factory workmen and send the cases back to Tribunal for fixing the wage structure including basic wage and dearness allowance and for granting adjustments in the light of the observations made by us. ".
The Award of the Tribunal which this Court was considering in the said appeals dealt with the clerical and subordinate staff separately from the factory workmen.
It is in respect of the portion of the Award relating to Clerks and subordinate staff that the appeal was dismissed and that dealing with the factory workmen was remanded.
Factory workmen had been divided into six categories and the employees of the Respondents had been directed to be fixed with separate wages for each category.
These six categories were: (i) Unskilled.
(ii) Semi skilled I. (iii) Semi skilled II.
(iv) Skilled I. (v) Skilled II, and (vi) Skilled III.
Apart from this the Sawarkar Tribunal in para 58 said, in those references it was concerned with the factory work men of only the three Respondent Companies; that different scales of wages prevail for different classes of workmen but which categories should be placed in which class is not prescribed.
It referred to the wage scale of different classes of workmen prescribed by Shri Divatia in which apart from the above six categories, three categories of Supervisors grade I, II & III were also given.
The Tribunal, however, while retaining these six categories introduced a seventh category of higher unskilled, which as this Court observed was not justified because there cannot be degrees of want of skill among unskilled class.
Apart from this the main attack was on the wages fixed for these six categories on the ground that 381 the Tribunal completely overlooked the wages prevalent for these categories in concerns which it had considered comparable.
Court observed "but the way in which the Tribunal has dealt with the matter shows that it paid scant regard to the exemplars.
filed before it and did not care to make the comparison for factory.
workmen in the same way in which it had made comparison for clerical and subordinate staff.
In this circumstances wagescales fixed for factory workmen must be set aside and the matter remanded to the Tribunal to fix wage scales for factory workmen dividing them into six categories as at present and then fixing wage after taking into account wages prevalent in comparable concerns.
The parties will be at liberty to lead further ' evidence in this connection".
It is clear from this judgment that the subordinates and factory workmen were, treated separately and we cannot accept the contention of the learned Advocate for he Appellant that in dismissing the appeal this Court had rejected the contentions of the Respondents relating to the Supervisors who according to it were included in the category of subordinate: staff.
Earlier the Sawarkar Award had after noticing that there are 3 sub divisions in the category of Supervisors laid down the scales which were higher having regard to its desire to prescribe the same scales for the three sub divisions as those for skilled sub division 1.
It is also apparent from the statements ' filed that the Foremen or Supervisors were divided into 3 categories according to their pay scales.
The pay of the Grade I was Rs. 360 20 500, of Grade Rs. 300 15 360 and of Grade III Rs.
250 10 300.
The Appellants themselves referred to these Supervisors as Foreman.
Work men under Section 2 (s) (iv) of the Act means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual supervisory or technical work, "but does not include any such person who being employed in a supervisory capacity, draws wages exceeding Rs. 500/ per mensem or exercise either by the nature of the duties attached to the office or by reasons of the powers vested in him, functions mainly of a managerial nature".
This Court in remanding the case of the factory workmen had under contemplation all those workmen who on the date of the reference were employed in a Supervisory capacity and drawing less than Rs. 500/ as these were included in six categories of workmen as classified by the Tribunal.
We do not think there is anything in the remand order to warrant the submission that the case of Supervisors was included among the category of subordinate staff or that it was not remanded.
After the remand the Tribunal was justified in holding that this Court had set aside 'the Award of the previous Tribunal in respect of all those workers who could not be properly classified as office staff in which the Foremen or Supervisors could not be Am L 1340 Sup CI/71 382 included.
It is also not the case of the Appellants that workers who were working in a Supervisory capacity were classified as ,office staff.
In our view it was open to both the parties to raise all the contentions that were open to them because on remand the wage structure of the factory workers including basic wage and their dearness allowance had to be considered afresh.
This conclusion is supported by the fact that parties were given liberty to adduce further evidence in respect thereto.
A reference to para 15 and 16 of the Award to which special leave is confined makes it clear that both parties were proceeding on the basis that the Tribunal has jurisdiction to deal with those supervisors who under the Act are workmen.
The only controversy was whether the Tribunal could fix a wage scale, for them which will ultimately give them a total wage together with basic pay and dearness allowance of over Rs. 500/ p.m. or fix scale which has an initial starting salary with dearness allowance in excess of Rs. 500/ p.m. which makes them non workmen and thus deprive it of jurisdiction to deal with the dispute.
It may be of interest to notice the arguments addressed before the Tribunal on behalf of the parties.
The contention by the Companies was that though the Supervisors may be in the category of workmen at the time of the reference the Tribunal would have no jurisdiction to revise their wages and grant to them at any stage, a total emoluments exceeding Rs. 500/as that would convert them into non workmen.
On the other band on behalf of the employees the submission was that the Companies had not raised this question in appeal before the Supreme ,Court and in any case it was 'not open to them to contend that the 'Tribunal had no jurisdiction to revise the wage scales of this class as Shri Athalye in ' his order of 14 7 64 had on a consideration of the Judgment of this Court held that the question of revision of the wages and dearness allowance of the Supervisors class was to be considered by that Tribunal.
In our view therefore, the ,dispute relating to the Supervisors wage structure and dearness allowance could, certainly on the plea of both employers and employees, be determined by the Tribunal.
The only question that could be raised and has been raised was whether the Tribunal has jurisdiction to fix wage scales to go beyond Rs. 500/ and whether as a matter of fact there were any workmen at the time of the dispute who were working in a supervisory capacity drawing a wage not exceeding Rs. 500/ .
The Tribunal noted that Shri Phadke for the Companies did not urge that the persons for whom revision was sought are engaged in managerial functions or at the time the dispute arose were all non workmen so is to dis,entitle them to raise the dispute and to exclude the jurisdiction of the Tribunal altogether.
If it were so, the Tribunal observed, the question must be deemed to have been impliedly concluded by the decision of the Supreme Court and the interpretation put 383 there were persons employed in a Supervisory capacity drawing a wage not exceeding Rs. 500/ and who as workmen within the amended definition of that expression were interested in demanding scales which take them beyond Rs. 500/ .
But it was contended by the Companies that even if the employees are entitled to raise the demand the Tribunal would have no jurisdiction to grant it in a manner so as to convert them into non workmen.
On these contentions the Tribunal held that although 'the Supervisors drawing a wage not exceeding Rs. 500/ may be entitled to raise the demand and ask for a scale which would take them beyond Rs. 500/ they would not be justified in making a claim for a scale which at the very commencement would provide them with a wage in excess of Rs. 500/ .
A claim for Rs. 300/as basic wage for the last grade of Supervisors together with a claim for dearness allowance would come to an amount in excess of Rs. 500/ and thus convert the Supervisors into non workmen even at the very commencement.
Such a claim, the Tribunal thought would obviously not be tenable because although it may be permissible on the grounds of social justice to revise the wage scale which may be justified by the circumstances in the case it will not be permissible for the Tirbunal to fix it so as to convert a workman into a non workman.
This leads us to the consideration of the third and the fourth point urged before us namely whether the Supervisors getting less than Rs. 500/ per month on the crucial date which is the date of reference can raise the dispute for wages taking them beyond Rs. 500/ and whether workmen can raise a dispute about non workmen.
In our view the Tribunal has jurisdiction to consider revision of wage scale, dearness allowance and other emoluments so long as there is a category of workmen who are employed in a supervisory capacity and drawing less than Rs. 500/ .
Even where the workman in a supervisory capacity ask for a pay structure which takes them beyoned Rs. 500 that by itself does not preclude its jurisdiction to determine what is the proper wage structure, for that class or category of workmen.
The view of the Tribunal was that though it is possible for Supervisors who are workmen on the date of the reference to demand a wage scale beyond Rs. 500/ they would not be justified in making a claim for a scale which at the very commencement would give them a wage in excess of Rs. 500/ so as to take them out of the category of workmen and make them non workmen.
The learned Advocate for the Appellant submits that merely because a claim is made by the Supervisors for an initial wage in excess of Rs. 500/it does not imply that it will be granted or merely for that reason deprive the Tribunal of its jurisdiction to pass an Award in respect of a wage which it considers to be fair and proper.
There 384 is no gain saying the fact that once a Tribunal is vested with the, jurisdiction to entertain the dispute which is validly .
referred, it does not cease to continue that jurisdiction merely because the claim made goes beyond the wage which takes workmen out of that category and make them non workmen.
What has to be seen is whether on the date of the reference there was any dispute in respect of the workmen which could be referred under the Act to the Tribunal.
In any case can workmen raise a dispute about non workmen even if many or all of them have since the reference become non working ? In All India Reserve Bank of India Employees Association vs Reserve Bank of India,(1) this Court had occasion to consider these aspects.
In that case Class 11 and Class III staff of the Reserve Bank of India through their Association and Class IV staff through their Union raised an industrial dispute which was referred 'by the Central Govt.
to the Tribunal.
One of the items referred concerned scales of pay, allowances and sundry matters connected with the conditions of service of the three classes, the most important ones being the demand of Class 11 staff claiming a scale commencing with Rs. 500/ .
The Tribunal held that the Class II staff worked in a Supervisory capacity and this demand for a minimum salary of Rs. 500/ , if conceded, would take the said staff out of the category of 'workman ' as defined in Sec.
2(s) of the Act.
Such an Award, and any Award, carrying wages beyond Rs. 500/ at any stage, was according to the Tribunal beyond its jurisdiction to make.
It also held that other workmen could not raise a dispute which would involve consideration of matters in relation to non workmen and that it would be even beyond the jurisdiction of the Central Govt.
to refer such a dispute under the Act.
The Tribunal therefore made no Award in regard to the Supervisory staff in Class IT.
This Court held that the Tribunal was not justified in holding that if at a future time an incumbent would draw wags in the time scale in excess of Rs. 500/ , the matter must be taken to be withdrawn from the jurisdiction of the Central Govt.
to make a reference in respect of him and the Tribunal to be ousted of the jurisdiction to decide the dispute, if referred Supervisory staff drawing less than Rs. 5001 per month cannot be debarred from claiming that they should draw more than Rs. 500/presently or at some future stage in their service.
They can only be deprived of the benefits, if they are non workmen at the time they seek the protection of the Act.
It was further held that in Sec. 2 (k) of the Act the word person has not been limited to 'workmen ' and must therefore receive a more general (1) ; 3 8 5 meaning.
But it does not mean any person unconnected with the disputants in relation to whom the dispute is not of the kind described.
It could not have been intended that although the dispute does not concern them in the least, workmen are entitled to fight it out on behalf of non workmen.
But if the dispute is regarding employment, non employment, terms of employment, or conditions of labour of non workmen in which workmen are themselves vitally interested the workmen may be able to raise an industrial dispute.
Workmen can for example raise a dispute that a class of employees not within the definition of 'workmen ' should be recruited by promotion from workmen.
When they do so the workmen raise a dispute about the terms of their own employment though incidentally the terms of employment of those who are not workmen is involved.
But workmen cannot take up a dispute in respect of a class of employees who are not workmen and in whose terms of employment those workmen have no direct interest of their own.
What direct interest suffices is a question of fact but it must be a real and positive interest.and not fanciful or remote.
Hidayatullah, J, as he then was, speaking for this Court concluded at page 45 thus : "It follows therefore that the National Tribunal was in error in considering the claim of class 2 employees whether at the instance of members drawing less than Rs. 500/ as wages or at the instance of those lower down in the scale of employment.
The National Tribunal was also in error in thinking that scales of wages in excess of Rs. 500 per month at any stage were not within the jurisdiction of the Tribunal or that Govt.
could not make a reference in such a contingency.
We would have been required to consider the scales applicable to those in Class 11 but for the fact that the Reserve Bank has fixed scales which are admitted to be quite generous".
The case of Workmen of Dimakuchi Tea Estate vs Management Dimakuchi Tea Estate, (q) was referred to with approval.
There the majority section R. Dass, C.J, section K. Das, J. (A. K. Sarkar J, dissenting) had held that the workmen cannot raise a dispute in respect of a non workman one Dr. K. P. Banerjee whose services were terminated by the management by paying him one month salary in lieu of notice.
It was contended that Dr. Banerjee being not a workman his case is not one of an industrial dispute under the Act and is therefore beyond the jurisdiction of the Tribunal to give any relief to him.
The matter had been referred to a Board known as 'the Tripartite (1) ; 386 Appellate Board which recommended that Dr. Banerjee should be reinstated from the date of his discharge.
Later the Govt.
of Assam referred the dispute for adjudication to a Tribunal constituted under Sec. 6 of the Act.
The Tribunal held that it had no jurisdiction to give any relief to him.
The Appeal to the Labour Appellate Tribunal of India, Calcutta was also dismissed.
Special Leave was granted, but was limited to the question whether the dispute in relation to a person who is not a workman falls within the scope of an industrial dispute under Sec.
2(k) of the Act.
The majority held that where the workmen raise a dispute as against their employer the "person regarding whom the dispute is raised must be one in whose employment, non employment, terms of employment or conditions of labour (as the case may be) the parties to the dispute have a direct or substantial interest. .
Where the workmen raise a dispute as against their employer the personregardin g whose employment, non employment, terms ofemployment or conditions of labour the dispute israisedneed not be, strictly speaking, a 'workman ' within the meaning of the Act, but must be one in whose employment, non employment, terms of employment or conditions of labour the workmen as a class have a direct or substantial interest".
Applying these principles the majority came to the conclusion that Dr. Banerjee who belonged to the Medical or Technical staff was not a workman and the Appellants had neither direct nor substantial interest in his employment or non employment and even assuming that he was a member of the same trade Union it cannot be said on the test laid down that the dispute regarding his termination of service was an industrial dispute within the meaning of Sec. 2(k) of the Act.
section K. Das, J, who delivered the judgment of the majority in the above case also spoke for the Court in Workmen vs Dahingeapara Tea Estate.(1) In the Dahingeapara case on the sale of the Tea Estate as a going concern the purchaser continued to employ the labour and some members of the staff of the vendor.
The question was whether the dispute raised by such workmen regarding the employment of the rest of the members of the old staff was an industrial dispute.
It was held that it was.
The reference was against the outgoing management as I well as against the incoming management of the Tea Estate.
It may be noticed that under the agreement of sale an option was given to the purchaser to continue in employment, the members of (1) A.I.R. 1968 S.C. 1026.
387 the staff.
it also made the vendor liable for the claims by the members of the staff not so retained in service by the purchaser.
In these circumstances it was held that as between the vendor and the discharged workmen the latter came within the definition of the workmen as they were discharged during the pendency of conciliation proceedings.
This fact however, did not make them workmen of the purchaser.
Even then they were persons in whose employment or non employment the actual workmen of the Dahingeapara Tea Estate were directly interested.
The ratio of the Western India Automobile Association vs Industrial Tribunal, Bombay,(1) as, also of the later decision in Workmen of Dimakunchi Tea Estate vs Management ( 2 ) was made applicable and the dispute was held to be clearly an in dustrial dispute within the meaning of the Act.
A reference is made to the Standard Vacuum Refining Company of India Ltd., vs Its workmen & Anr., (3) where the question relating to the dispute arising out of the demand for the abolition of the contract system of employing labour for cleaning and maintenance work at the refinery including the premises and plant belonging to it and for absorbing the workmen employed through the contractors into the regular service of the Company was considered.
The Company objected to the reference on the ground that : ( 1 ) it was incompetent inasmuch as there was no dispute between it and the Res pondents, and it was not open to them ,to raise a dispute with respect to the workmen of some other employer namely the contractor; and (2) in any case it was for the Company to decide what was the best method of carrying on its business and the Tribunal could not interfere with function of the management.
The Tribunal held that the reference was competent and that the claim was justified.
Following the Dimakuchi case this Court held that the dispute in the present case was an industrial dispute because (1) the Respondents had a community of interests with the workmen of the contractor; (2) they had also a substantial interest in the subject matter of the dispute in the sense that the class to which they belonged, namely workmen, was substantially affected thereby, and (3) the Company could give relief in the matter.
The conclusion of the Tribunal that the contract system should be abolished was held to be just in the circumstances of the case and should not be interfered with.
It would therefore appear that the consistent view of this Court is that non workmen as well as Workmen can raise a dispute in respect of matters affecting their employment, conditions of service etc., where they have a community of interests, provided they are direct and are not remote.
As stated in the (1) ; (2) A. I. R. 388 Reserve Bank of India 's case(1) "But workmen cannot take up a dispute in respect of a class of employees who are not workmen and in whose terms of employment, those workmen have no direct interest of their own".
At any rate as long as there are persons in the category of workmen in respect of whom a dispute has been referred it cannot be said that the Tribunal has no jurisdiction notwithstanding the fact that some or many of them may become non workmen during the pendency of the dispute.
In these circumstances the Tribunal in our view was wrong in holding that the dispute regarding Supervisors was not maintainable merely because a demand was made for a higher wage scale, which would take them out of the category of workmen.
The Tribunal has jurisdiction to decide these matters because on the crucial date the supervisors were workmen and merely because of the demand the Tribunal does not lose its jurisdiction to prescribe the pay scales and the dearness allowance either by reason :of the fact that the maximum will go beyond Rs. 500/ or that even the initial pay demanded will be more than Rs. 500/ .
Provided that at the time of adjudication there are some at least in the category who are workmen.
But the question is if there are none at all and all of them have become, non workmen either during the pendency or at the time of adjudication, does the dispute survive ? In other words does the dispute remain a dispute between employers and workmen within the meaning of Section 2 (k) of the Act? These questions arise out of the fifth contention urged before us by the learned Advocate for the Respondents namely whether in fact there are now any supervisors working in any of the Companies because as the learned Advocate for the Respondent contends, if, they are none and they are all non workmen, the dispute lapses and at any rate the fixation of a wage scale for non existing workmen would be an exercise in futility.
The learned Advocate for the Appellant contests this proposition on the ground that even if there are no supervisor workmen working in the Companies, the matter should be considered by the Tribunal inasmuch as any pay scale prescribed by it would have retrospective operation as from the 1st of April 59 which what this Court had directed while remanding the case back to the Tribunal in Civil Appeals Nos.
272 280 of 1962.
For this reason it is said that those workmen who have since gone out of the category of workmen ,or have retired or resigned would be entitled to the benefit of the pay structure and could recover arrears.
In the Reserve Bank case(") a similar situation had to be considered.
The reference to the National Tribunal was in 1960 and by the time the matter came to be decided all of them were getting wages in (1)[1966] 1 S.C. 25. 3 8 9 excess of Rs. 500/ per month and were non workmen.
It was held at page 46 "In view of the fact that all of them now receive at the start 'wages ' in excess of Rs. 500/ per month, there is really no issue left concerning them,, once we have held that they are working in a supervisory capacity.
" In the result the Appeal was dismissed with the observation that it would have partly succeeded but for the creation of new scales of pay for Class II employees and acceptance of some of the minor points by the Reserve Bank.
It is however, contended by the learned Advocate for the Appellant that in that case Mr. Chari had acknowledged at page 37 that the scales of pay which were awarded were as generous as the present circumstances of our country permit.
In view of this admission it is said that this Court made no order and therefore that should not be taken into consideration in deciding whether the matter should be remended to the Tribunal for fixing pay scales of the Supervisors.
The learned Advocate however ignored the observation immediately preceding the admission made by Mr. Chari.
It was observed at page 37 "but more than this the minimum total emoluments as envisaged by the definition of wages, even at the commencement of service of each and every member of Class II staff on January 1, 1962 now exceed Rs. 500/ p.m.
This of course was done with a view to withdrawing the whole class from the ambit of the reference, because it is supposed, no member of the class can now come within the definition of 'workman '.
We shall, of course, decide the question whether the resolution has that effect.
If it does, it certainly relieves us of the task of considering scales of pay for these employees for no remit is now possible as no National Tribunal is sitting.
The scales have been accepted as generous, the dispute regarding scales of pay for Class II employees under the reference, really ceases to be a live issue".
The decision, therefore, must be understood in the light of the above observations.
The reason for this conclusion is that if there are no workmen of the category with respect to whom a dispute has been referred the Tribunal cannot be called upon to prescribe a wage structure for non existing workmen, nor does it have the jurisdiction to do so.
The dispute in this sense must be deemed to have lapsed.
The question therefore to be determined in this case is whether as a matter of fact there are any workmen now working in a Supervisory capacity who are drawing more than Rs. 500/ , so that it would be futile for us to direct the Tribunal to fix scales of Day and dearness allowance in respect of a category of employees who are no longer workmen and with respect 3 90 to whom the reference can be said to have been withdrawn as in the case of the Reserve Bank of India.
In 'Support of this contention that there are in fact no supervisors at present who can be termed workmen in the two Companies the learned Advocate for the Respondents asked for permission to file an affidavit which permission we gave with liberty to the Appellant to file a counter.
Accordingly the Appellant, has filed a counter and the Respondents have submitted their rejoinders.
In paragraph 3 of the affidavit filed on behalf of the Respondents it is stated that the Second Respondent Company namely Greaves Cotton & Crompton Parkinson Pvt.
Ltd. (Crompton Greaves Ltd).
, employed 15 employees in the Supervisory cadre as shown in the statement filed in pursuance of the Tribunals order dated 15 1 64 but as on the date of the affidavit only four persons remained in the Supervisory cadre Grade 11.
There are no person employed in other Supervisory grade.
It was.also pointed out that all these 4 employees were in the Supervisory Grade II and drawing a total salary as on July 1971 exceeding Rs. 500/ a month.
In the annexure to the affidavit the reason given was that eachone of the Supervisors at the time when the statement was filedin January 1964 had ceased to be a Super visor.
Out of the15 persons, whose names were given, four resigned.
2 retired, one died two retrenched and two were, promoted as Technical Assistants.
The remaining four of them are all drawing per month a salary of Rs. 545/50 as Grade II Supervisors.
These are S/Shri Deshmukh, Gurbax Singh Kaslay and Pastakia.
In so far as Greaves Cotton & Co. Ltd., is concerned, it was urged that even on 1 1 64 as per exhibit RC. 2 the only three Supervisors who had been working with them were drawing a salary in excess of Rs. 500/ which will take them out of the category of workmen.
These are G. G. Naik, section section Kulkarni, M. D. Gupte, who were on that date drawing a total salary of Rs. 505/ ; Rs. 581/73, and Rs. 545/58 respectively.
This statement was again reiterated in the rejoinder, where it was stated that these were promoted in 1965, the latter two as Assistant Engineers and the former as Superintendent Cone & tube plant.
The counter affidavit by the Appellant sworn to by the General Secretary of the Greaves Cotton & allied Companies Union apart from containing averments which are not germanium to the matter in issue does not traverse the specific statement in respect of each one of the Super visors nor does it say that any of them were still supervisors drawing a salary of less than Rs. 500/ .
It was because of the submission of the learned Advocate on instructions that there are still some Supervisors 3 91 employed by the Respondents who are workmen within the meaning of Sec. 2 (s) of the Act, we had asked him to file a counter giving the name of the person or, persons who are still working in that capacity and their total emoluments; but we find from the counter except for a bare denial no specific averment as aforesaid has been made nor does the counter states categorically who are the persons who are now working as Supervisors and drawing less than Rs. 500/ .
With the counter were annexed two statements Annexure 'A ' & Annexure 'B ', the former showing supervisors working in Greaves Cotton & Crompton Parkinson Ltd., as on 30 5 59 with wage drawn by them on that date, the latter is the statement showing list of Supervisors working in the said Company as on 1st October '65 and the wage drawn by them for the month of September, 1965.
Merely to state that there were Supervisors on 8 4 59 the day on which the Govt.
of Maharashtra made the reference or in 1964 or 1965 or to say that even today there are Supervisors working in that Com pany or that the Industrial Tribunal went into the question and gave its finding against the Company holding that there were Departmental Foremen in the Factories of Greaves Cotton & Co. Ltd., does not advance the case any further than what it was when we permitted the Respondents to file the affidavit.
We cannot therefore accept a mere denial in respect of the crucial point whether today there are Supervisors working in the Respondent Companies who are drawing a basic wage together with dearness allowance of less than Rs. 5001/ as stated in the affidavit and again reiterated in the rejoinder.
The entire argument of the Respondents that any decision given by this Court would be otiose is based upon the existence or non existence of the said fact.
In view of the omission to state specifically in the counter the names of the persons who as of now are still working as Supervisors and drawing less than Rs. 500/ we cannot but hold that the averments made by the Respondents that there are no employees who are working at present in a supervisory capacity and who can be said to be workmen, have been substantiated.
If so, for the reasons given the issue lapses, as such these appeals will be dismissed but in the circumstances without costs.
[/INST]The respondent, a clerk of the appellant bank, was entrusted with supervisory work and a general power of Attorney was executed in his favour to endorse Hundies cheques, warranty, Railway receipts, pension bills and other negotiable and mercantile instruments and to prosecute, defend, answer and oppose any suit etc.
on behalf of the appellant bank.
The respondent filed an application before the Labour Court, Rajasthan under section 33C (2) of the , praying for computation of special allowance under the Sastri Award, on the ground that he was discharging supervisory duties.
The Labour Court, allowed supervisory allowance of Rs. 40 p.m. with consequential benefits.
In appeal to this Court the appellant bank ,contended that since the respondent was not called upon to perform the functions enumerated in the power of attorney, he is not entitled to any special allowance.
Dismissing the appeal.
HELD : (i) The payment of a special allowance was called for when an employee discharged duties of a supervisory nature or was accorded the status of a person competent to discharge functions of a supervisory character.
[115d] (ii) Since the Management by the power of Attorney, had placed the respondent in a category of persons with responsibility and entrusted him with functions of a supervisory character and the employee was to discharge that responsibility, he was entitled to supervisory allowance no matter, whether he was actually called upon to discharge such functions or not for a certain period of time.
[1 15F, 11 6B] State Bank of ' Hyderabad vs V. A. Bhinde, [1969] 2 L. L. J. 713, referred to.
</s>
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<s>[INST] Summarize the judgementCivil Appeal No. 1389 of 1988.
From the Judgment and order dated 6.7.1987 of the Orissa High Court in C.M.C. No. 375 of 1984.
R.K. Mehta and Miss Mona Mehta for the Appellant.
G.L. Sanghi and Vinoo Bhagat for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an appeal by special leave from the judgment and order of the High Court of orissa, dated 6th July, 1987.
It arises out of a contract entered into between the State and the respondent for the construction of certain projects for irrigation.
During 1973 74 the respondent was entrusted with the job of 'Construction of Ramaguda Minor Irrigation project in Kukudakhandi Block ' vide agreement No. 4 F 2.
The value of the work was Rs.9,99,510.
The work pursuant to the contract commenced on 4th May, 1973 and 4th November, 1974 was the stipulated date of com 566 pletion of the work.
However, on 30th December, 1975 the work was actually completed.
It is asserted by the appellant that the respondent contractor accepted the final payment and was duly paid a sum of Rs.23,74,001 for the work done by him including the extra work.
Thereafter, no amount was due to the respondent, according to the appellant, and he did not raise any claim whatsoever before the Department.
On 28th September, 1976 the last payment was alleged to have been made by the respondent.
On 30th October, 1976 the last bill was prepared which was nil one.
The respondent, thereafter, raised a claim and gave notice for appointment of an arbitrator.
Consequently, the Chief Engineer appointed one Shri A.N. Nanda as the arbitrator in terms of the arbitration clause.
However, on the application of the respondent the learned Subordinate Judge removed Shri A.N Nanda and appointed one Shri B. Patnaik as the arbitrator.
It may be mentioned that the application was made for removal of the arbitrator Shri B. Patnaik but the same was ultimately dismissed.
Before the arbitrator, the respondent filed the claim raising some claims which, according to the appellant, were fictitious and baseless.
These claims were for the alleged extra work in respect of which the decision of the Superintending Engineer under clause 11 of the contract was final and the same was excluded from the purview of the arbitration clause.
It was contended on behalf of the appellant that the arbitrator had no jurisdiction to deal with such claims.
The appellant filed a counter claim for Rs.2,11,400, denying all the claims of the respondent.
All the documents and relevant papers were produced before the arbitrator.
It is stated that as the application for removal of Shri B. Patnaik as arbitrator was pending, an application had been made before Shri section Patnaik to adjourn the proceeding which was refused and the award was made.
This award was claimed to have been made virtually ex parte.
This, however, was not so and it appeared that the arbitrator on hearing the parties and considering the evidence produced before him made the award.
The arbitrator made the said award on 18th March, 1983 but the same was a non speaking and nonreasoned award for a lump sum of Rs.15,23,657 plus interest @ 10% from 9.9.1975 till the date of payment or decree.
Objections to the said award were filed in the Court.
The learned Subordinate Judge upheld the objection to the award and set aside the award on 15th September, 1984.
There was an appeal to the High Court and the High Court set aside the judgment of the learned Subordinate Judge and made the award of the arbitrator, rule of the Court.
It also directed payment of further interest at 6%.
567 Being aggrieved thereby the State of Orissa has preferred this appeal.
In support of this appeal, it was submitted that the award in question was a lump sum af money and it was without any reason, in favour of the respondent.
It was also submitted that the validity of the non reasoned award is awaiting determination by a larger Bench of this Court.
Hence, it was urged that this question should await decision of the larger Bench.
In the facts and circumstances of the case, we are of the opinion that we would not be justified in acceding to this request on the part of the appellant.
In this case the submission that the award was bad being an unreasoned one, was neither mooted before the learned Subordinate Judge nor before the High Court.
This contention was also not raised in the objection to the award, filed originally.
It is only in the special leave petition that such a plea has been raised for the first time.
Arbitration is resorted to as a speedy method of adjudication of disputes.
Stale and old adjudication should not be set at naught or examination of that question kept at bay on the plea that the point is pending determination by a larger Bench of this Court.
Even if it is held ultimately that the unreasoned award per se is bad, it is not sure whether such a decision would upset all the awards in this country which have not been challenged so far.
Certainly, in the exercise of our discretion under Article 136 of the Constitution and in view of the facts and circumstances of this case, we would not be justified in allowing the party to further prolong or upset adjudication of old and stale disputes.
In that view of the matter, we think that the pendency of this point before the larger Bench should not postpone the adjudication and disposal of this appeal in the facts of this case.
The law as it stands today is that award without reasons are not bad per se.
Indeed, an award can be set aside only on the ground of misconduct or on an error of law apparent on the face of the award.
This is the state of law as it is today and in that context the contention that the award being an unreasoned one is per se bad, has no place on this aspect as the law is now.
This contention is rejected.
It was next contended that in view of clause 11 of the contract the matters upon which the arbitrator has adjudicated were excluded and these were not arbitrable.
It was submitted that clause 11 of the contract between the parties made on these matters the decision of the Engineer Incharge final and binding.
Hence, inasmuch as the arbitrator has purported to act upon this field which was only to be decided by the Engineer in charge, the award was bad.
The disputes over which the arbitrator has purported to make an award, were regarding 568 works covered by the agreement.
lt was submitted that the provision to clause 11 af the agreement categorically provided that in the event of dispute over a claim for additional work, the decision of the Superintending Engineer of the Circle would be final and, hence, the arbitrator by entertaining the additional claim of the contractor had exercised a jurisdiction not vested in him and, as such, misconducted himself.
In order to judge this contention, therefore, it is Imperative first to refer to clause 11 of the agreement.
It provides as follows: "Clause 11 The Engineer in charge shall have the power to make any alteration in or additions to the original specifications, drawings designs, and instructions that may appear to him necessary or advisable during the progress of work and the contractor shall be bound to carry out the work in accordance with any instructions which may be given to him in writing signed by the Engineer in charge and such alteration shall not invalidate the contract.
Any additional work which the contractor may be directed to do in the matter above specified as part of the work, shall be carried out by the contractor on the same conditions in all respects on which he agreed to do the main work and at the same rates as are specified in the tender for the main work.
The time for the completion of the work shall be extended in the proportion that the additional work bears to the original contract work and the certificates of the Engineer in charge shall be conclusive as to such proportion and if the additional work includes any class of work shall be carried out at the rates entered in the sanctioned schedule of rates of the locality during the period when the work being carried on and if such last mentioned class of work is not entered in the schedule of the rate of the district, then the contractor shall within 7 days intimate the rate which it is his intention to charge for such class of work and if the Engineer in charge does not agree to this rate he shall by notice in writing be at liberty to cancel his order to carry out such class of work and arrange to carry such class of work and arrange to carry out in such manner as he may consider advisable.
No deviation from the specification stipulated in the contract or additional items of work shall ordinarily be carried by the contractor and should any altered, additional or substituted work be carried out by him unless the rates of the substituted, altered or additional 569 items have been approved as fixed in writing by the Engineer in charge.
The contractor shall be bound to submit his claim for any additional work done during any month or before the 15th day of the following months accompanied by the copy of the order in writing of the Engineer in Charge for the additional work and that the contractor shall not be entitled to any payment in respect of such additional work if he fails to submit his claim within the aforesaid period.
Provided it always that if the contractor shall commence work or incur any expenditure in regard thereof before the rates will have been determined as lastly herein before mentioned, then in such case he shall only be entitled to be paid in respect of the determination of the rates as aforesaid accordingly to such rate of rates as shall be fixed by the Engineer in Charge.
In the event of a dispute the decision of the Superintending Engineer of the Circle will be final. " This clause has to be read in conjunction with the arbitration clause i.e. clause 23, which provides as follows: "Clause 23: Except where otherwise provided in the contract all questions and disputes relating to the meaning of the specifications, designs and instructions hereinbefore mentioned and as to the quality of workmanship or materials used on the work or as to any other question, claim, right matter, or thing whatsoever in any way arising out of, or relating to the contract, designs, drawing specifications, estimates, instructions, orders or these conditions or otherwise concerning the works or the execution or failure to execute the same whether arising during the progress of work, or after the completion or abandonment thereof shall be referred to the sole arbitration of a Superintending Engineer of the Circle.
It will be no objection to any such appointment that the arbitrator so appointed is a Government servant.
The award of the arbitrator so appointed shall be final.
conclusive and binding on all parties to this contract.
The learned Subordinate Judge was inclined to hold that the 570 arbitrator had no jurisdiction to arbitrate on disputes which he has purported to do but in view of the Bench decision of the High Court of Orissa in State of orissa vs Gokulchandra Kanungo, , he held that he was not free to decide that the dispute was not arbitrable and rejected this plea.
The High Court also did not entertain this objection.
It was canvassed before us and submitted that in view of clause 11, the matters in dispute and the amount due for the alleged additional work, were not arbitrable at all.
We have noticed clause 11 which makes the decision of the Engineer in Charge final in respect of some issues.
In this connection, it is important to refer to the proviso of Clause 11 which states that in case of dispute about the rates and time for completion of the work and any dispute as to proportion that the additional work bears to the original contract work, the decision of the Superintending Engineer of the Circle would be final.
The points upon which the arbitrator in the instant case has adjudicated are not those which are excepted or covered by Clause 11 of the agreement.
In that view of the matter, this clause has no application in the instant controversy.
Our attention was drawn to certain observations of this Court in Bombay Housing Board (Now the Maharashtra Housing Board) vs Karbhase Naik & Co., Sholapur, s ; There in view of clause 14 of the said contract, it was open to the respondent to make claim on the basis of the rates quoted.
There, Clause 14 was more or less identical to Clause 11 in the present case.
This particular contention, however, did not arise in that case.
The Court held that the respondent there being contractor, was not bound to carry out additional or altered work and there was no reply to the notice stating the rates intended to be charged and the respondent there was not free to commence and complete the work on the basis that since the rates quoted were not accepted, it would be paid at such rates to be fixed by the Engineer in charge and that if it was dissatisfied with the rate or rates fixed by the Engineer in charge, it could raise a dispute before the Superintending Engineer and that the time limit for completion would be extended in all cases.
This Court observed that only the rates were settled by the agreement.
The respondents were under no obligation to carry out the additional or altered work but that is not the dispute before us in the present case.
On the construction of Clause 11 of the contract, we are unable to accept the contention but on the points that the arbitrator has awarded in this case, were excluded by Clause 11 of the contract herein.
Shri Mehta, however, strongly relied on certain observations of a Bench decision of Madhya Pradesh High Court in case of the Chief Administrator, Dandakaranya Project, 571 Koraput, Orissa & Anr.
vs M/s. Prabartak Commercial Corpn.
Ltd. Calcutta, , wherein while considering Clause 13A of the agreement there the High Court held that the dispute whether charges for stone chips could be adjudicated, was not arbitrable.
That was a case of rates which was within the jurisdiction of the Engineer in charge by Clause 13A of the bargain between the parties.
In the instant case it is not the rate which is in dispute.
The Madhya Pradesh High Court referred to several decisions of this type and came to the conclusion on the construction of Clause 13A in that case that the dispute that had arisen between the parties in arbitration, was excluded by Clause 13A of the agreement.
In view of the Clause in the instant case and the nature of the dispute which had arisen, we are of the opinion that such decisions also cannot give much assistance to the appellant.
Reliance was also placed on certain observations of the Delhi High Court in the case of Food Corporation of India vs P.L. Juneja, AIR 1981 Delhi 43.
There the Division Bench of the High Court was concerned with the questions which were to be decided by the Court and not by the arbitration.
There also the Clause was very much dissimilar to the present one which is set out hereinbefore.
Clause 15(c) provided that the question whether a particular service is or is not to be covered by any of the services specifically described and provided for the contract, or is or is not material to any such services shall be decided by the Regional Manager whose decision shall be final and binding.
It was not the case whether any additional work was done and if so, the extent of such work.
In the aforesaid view of the matter it is not possible to hold that in view of nature of instant dispute, the matters at issue were not excluded and the arbitrator did not commit any wrong in proceeding with the arbitration.
It was next contended that an amount of Rs.15,23,657 has been granted for additional work over and above the payment of Rs.23,74,001 and this was disproportionately high and the award for this amount was per se bad.
It is well settled that when the parties choose their own arbitrator to be the judge in dispute between them, they cannot, when the award is good on the face of it, object to the decision either upon law or on facts.
Therefore, when arbitrator commits a mistake either in law or in fact in determining the matters referred to him, where such mistake does not appear on the face of the award and the documents appended to or incorporated so as to form part of it, the award will neither be remitted nor set aside.
The law on this point is well settled.
See in this connection the observations of this Court in Union of lndia vs Bungo Steel Furniture P. Ltd.; , and Allen Berry & Co. (P) Ltd. vs Union of India, 282.
It was, however, contended that the amount of the award was shockingly high that it shocked the conscience of the Court and the award must be set aside.
The fact that merely the award amount is quite high as commented by the High Court or that a large amount has been awarded, does not vitiate the award as such.
In the instant case the original award was for Rs.9,99,510.
Admittedly, additional work was done and payment for such work was determined at Rs.23,74,001 and claim for further additional work was made for Rs. 15,23,657.
One has to judge whether the amount of the award was so disproportionately high to make it per se bad in the facts and circumstances of a particular case.
It is clear from the facts that the arbitrator is a highly qualified person having several Indian and foreign Degrees and at the relevant time was acting as Chief Engineer in charge of the State Government.
Having regard to the nature of claims involved and the fact that the additional work has been done for which large amounts have been paid and in this case it is evident that all due opportunities were given to the parties to adduce all evidence, we are unable to accept the submission that the award was so disproportionate as to shock the conscience of the Court and, as such, it cannot be held that the award was bad per se.
In our opinion, the High Court was right in dismissing the challenge to the award on this ground.
In support of the submission that the award must be held to be bad in this case, Mr. Mehta drew our attention to certain observations of Orissa High Court in State of Orissa & Ors.
vs Gangaram Chhapolia & Anr., , where at page 279 the learned Judge observed the malady of the racket of arbitration was rampant in Orissa.
Though the learned Judge was apparently heeding to the observations of Justice Holmes of America observed that the Court should take note of "the felt necessities of the time".
In our opinion, the evidence of such state of affairs should make this Court scrutinise the award carefully in each particular case but that does not make the Court declare that all high amounts of award would be bad per se.
As mentioned hereinbefore, it cannot be said that the amount of award was disproportionately high to hurt the conscience of the Court in this case.
It is now well settled that the interest pendente lite is not a matter within the jurisdiction of the arbitrator.
In this connection reference may be made to the observations of this Court in Executive Engineer (Irrigation), Balimela & Ors., vs Abhaduta Jena & Ors., [1988] 1 SCC 418 where this Court held that the arbitrator could not 573 grant interest pendente lite.
In the aforesaid view of the matter this A direction in the award for the payment of such interest must be deleted from the award.
The order of the High Court is modified to the extent that the award is confirmed subject to deletion of the interest pendente lite.
We make it clear that in the facts of this case interest for the period from 26.9.81 to 18.3.83, the date of the award be deleted.
The High Court has, however, granted interest from the date of the decree.
That is sustained.
The appeal is, therefore, dismissed except to the extent indicated above.
In the facts and circumstances of the case the parties will pay and bear their own costs.
G.N. Appeal dismissed.
[/INST]The respondent landlord had filed a petition against the appellant tenant under section 14(1)(a) and 14(1)(b) of the Delhi Rent Control Act, 1958 for eviction from a residential cum commercial premises, inter alia, on the ground that the appellant had sublet, assigned or otherwise parted with possession of the premises to his sons who were running their partnership business in the name of Bindra Tent House with which the tenant had no concern.
The tenant contested the petition on the ground that he was in exclusive possession of the premises and was carrying on his business therein with the help of his sons who were members of his Joint Hindu Family.
In support of his plea that the tenant had parted with possession, the landlord had produced documentary evidence which included copy of a statement made by the tenant before the Income Tax officer, which indicated that the tenant had sold his proprietary business to his sons.
The Additional Rent Controller held that there was no subletting by the tenant, but he had unlawfully parted with the possession of the premises in favour of his sons and as such was liable to be evicted.
During the pendency of the appeal the tenant sought permission under order 6 Rule 17 of the Code of Civil Procedure to amend his written statement to state that the property was taken on rent by M/s Bindra Tent House.
The Tribunal did not permit this belated amendment as this would have introduced an entirely new case.
On merits, the Tribunal dismissed the appeal of the tenant.
The High Court did not find any substantial question of law in the tenant 's second appeal and dismissed the same.
Allowing the appeal, it was, 326 ^ HELD: (1) The only ground perhaps upon which the landlord A was seeking eviction was parting with possession.
It is well settled that parting with possession meant giving possession to persons other than those to whom possession had been given by the lease and the parting with possession must have been by the tenant.
User by other person is not parting with possession so long as the tenant retains the legal possession himself, or in other words, there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right of possession.
So long as the tenant retains the right to possession there is no parting with possession in terms of clause (b) of section 14(1) of the Act.
[329G H; 330A] (2) Even though the father had retired from business and the sons had been looking after the business in the facts of this case, it cannot be said that the father had divested himself of the legal right to be in possession.
[330B] (3) In the instant case, if the father was carrying on the business with his sons and the family was a joint family, it is difficult to presume that the father had parted with possession legally to attract the mischief of section 14(1)(b) of the Act.
[330D E] (4) In these days of acute shortage of accommodation both for living and for vocation, one has to take the reality with a pinch of salt and the manner in which the original tenant has conducted himself in shifting his defence would not disentitle him to the benefit of the law.
[330Gl Subashini Mojumdar vs Krishna Prasad Mahatoo, A.I.R. ; M/s Modi Spinning and Weaving Mills Co. Ltd. vs M/s Ladha Ram and Co., ; and Smt.
Krishnawati vs Shri Hans Rai, , referred to.
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<s>[INST] Summarize the judgementCivil Appeal No. 582 of 1971.
Appeal by Special Leave from the Judgment and order dated the 29th July 1970 of the Punjab & Haryana High Court in Civil Writ No. 2376170 and 511 CIVIL APPEAL No. 1418 of 1970.
From the Judgment order dated 4th December 1969 of the Punjab and Haryana High Court in C.W.No.
342 of 1969.
Tirath Singh Munjral, G. K. Arora, B. C. Das Gupta & Co. for the Appellant.
N. section Das Behl and o. P. Sharma for the respondent.
The Judgment of the Court was delivered by JASWANT SINGH, J.
There two Civil Appeals Nos. 1418 of 1970 and 582 of 1971, the first by certificate of fitness granted under Article 133(1)(a) of the Constitution by the Punjab and Haryana High Court and the second by special leave granted by this Court which are directed against the Judgments and orders of the said High Court dated December 4, 1969, and July 29, 1970, rendered in Civil Writ r Petitions No. 342 of 1969 and No. 2376 of 1970 respectively shall be disposed of by this Judgment as they arise out of identical proceedings and raise common questions of law.
The appellant, a public limited company incorporated under the Indian Companies Act, which carried on the business inter alia of manufacture, storage and sale of various kinds of Indian made foreign liquors and had its plants for manufacture and production of beer and distillation and production of the said liquors at Solan (in Himachal Pradesh), at Mohan Nagar (in Uttar Pradesh), at Lucknow (in Uttar Pradesh) and at Kasauli (in Himachal Pradesh) held in the years 1967, 1968 and 1969 a licence in From B.W.H. 2 under section 22 of the Punjab Excise Act (1 of 1914) (hereinafter referred to as 'the Act ') read with Rule 2 of the Punjab Bonded Warehouse Rules, 1957 (herein after referred to as 'the 1957 Rules ') which were framed by the Financial Commissioner under section 59 read with section 22 of the Act, permitting it to run on conditions specified therein a Bonded Warehouse at Chandigarh for storage of bottled and bulk liquor and issue thereof under bond or on payment of duty to the licensees of Punjab, Haryana, Himachal Pradesh etc.
One of these conditions required the appellant to observe the provisions of the Act as also the Rules framed and instructions issued thereunder from time to time.
Rules 7 to 10 of 1957 Rules governing the appellant 's licence ran thus: "7.
No liquor shall be received in the bonded warehouse unless accompanied by a pass from the offlcer in charge of the distiller or bonded warehouse from which it has been imported or transported.
Immediately on arrival of a consignment at the bonded warehouse the officer in charge shall be informed and the consignment shall not be opened until the same has been examined and verified with the pass by the officer in charge who shall also note the results in the register maintained for the purpose and also on the pass covering the consign 512 ment.
One copy of the pass with entries of receipt shall be immediately returned to the officer, who issued the pass ; the other copy with entries thereon.
shall he kept in the.
Warehouse.
8 A wastage allowance not exceeding 1 per cent shall be made for the actual loss in transit by leakage or breakage of vessels or bottles containing liquor.
The allowance shall be determined by deducting from the quantity despatched the quantity received at the destination, both quantities being that in terms of proof liters of spirit contents or in case of beer bulk liters.
9 If the report of the officer in charge shows that the wastage exceeds the prescribed limit, the licensee shall be liable to pay duty at the prescribed rate as if the wastage in excess of the prescribed limit had actually been removed from the Warehouse.
Provided that each case of excessive wastage shall be re ported to the Financial Commissioner for orders who may in his discretion, on good cause being shown remit it whole or a . part or the duty leviable on such wastage.
10 Liquor shall be imported/transported under bond in accordance with the Punjab Liquor permit and Pass Rules at the sole risk and responsibility of the licensee.
The bond in form L. 37 shall be discharged, after liquor been duly checked and proved by the officer in charge and deposited in the Ware house." Between Junc.
1967 and April, 1969, the appellant transported.
for the purpose of bottling, various quantities of Indian made foreign liquors from its aforesaid distilleries in Uttar Pradesh and Himachal Pradesh to it Bonded Warehouse at Chandigarh.
This was done on the strength of the permits issued by the Excise and Taxation officer, Chandigarh.
Pursuant to Rule 7 of the 1957 Rules, the officer in charge of the Warehouse examined the consignments on their arrival at their destination with a view to checking and verifying the quantities thereof with those shown in the permits and discovered that they suffered from shortage which exceeded the wastage allowance of 1 per cent permissible under Rule 8 of the said Rules.
As a sequel to the detection of the aforesaid shortages.
the Excise and Taxation Commissioner exercising the powers of Financial Com missioner, Chandigarh Administration, who is the first respondent here in, issued notices calling upon the appellant to show Cause why duty at the prescribed rate of Rs. 20/ per proof litre be not levied against it on the wastage in excess of the prescribed limit "as if the same had been removed from its Bonded Warehouse at Chandigarh.
" In the written representation submitted on behalf of the appellant in reply to the notices, it was pleaded that the liquor evaporated during transit: that 513 the Bonded Warehouse was in its initial stage and the method of measurement of spirit was crude; that at the time of measurement, the temperature of spirit was not taken and that apart from evaporation, wastage occurred by leakage of drums in transit.
By his detailed orders dated January 10, 1969 and February 10, 1970, the said respondent repelled all the pleas raised on behalf of the appellant and made the ' notices absolute holding that there was no material on the record to show that anything peculiar had taken place in respect of the consignments in question which entitled the appellant to any remission in the duty leviable on the wastage.
The appellant thereupon preferred to the High Court writ petitions Nos.
342 of 1969 and 2376 of 1970 under Articles 226 and 227 of the Constitution challenging the aforesaid orders on various grounds.
While the first writ petition was dismissed by the High Court by an elaborate Judgment and order dated December 4, 1969, the second one was dismissed in limine vide order dated July 29, 1970.
While the High Court granted, as already indicated, a certificate of fitness for appeal to this Court against its Judgment and order dated December 4, 1969, it refused to so in respect of its order dated July 29, 1970.
Though several contentions were raised by the appellant in the aforesaid two writ petitions filed by it in the High Court, counsel appearing on its behalf has assailed before us the correctness of the impugned orders passed by the first respondent on two grounds.
He has in the first instance contended that Rules 8 and 9 of the 1957 Rules under which the duty is sought to be imposed are ultra vires the rule making power of the Financial Commissioner.
Elaborating this submission, counsel has urged that since the state alone has, by virtue of election 31 of the Act, the power to impose duties mentioned therein, as also the exclusive power under section 58(1) of the Act to make rules for the purpose of carrying out the provisions of the Act including those of section 31 or any other law for the time being in force relating to excise revenue and section 13(a) of the Act prohibits the state Government to delegate the powers conferred on it by sections 14, 21, 31, 56 and 58 of the Act, Rules 8 and 9 of the 1957 Rules are manifestly beyond the competence of the Financial Commissioner.
This contention cannot, in our opinion be accepted as it proceeds on a misconception of the correct legal position.
It is, no doubt, true that it is the state Government alone which is empowered tn impose excise duty or countervailing duty on any excisable article and to prescribe rates thereof as also the make rules for carrying out inter alia the purposes of section 31 of the Act.
but it seems to be overlooked that the impugned rules do not impose any one of the aforesaid duties or prescribe the rates thereof or create any liability in respect thereof.
They are in essence and substance of a regulatory character meant to guard against perpetration of fraud or deception on the Revenue.
They provide for and regulate the storage of liquor ill the Bonded Warehouse without payment at the initial stage of the duty payable under the Act and subsequently the removal of the liquor from the Warehouse on payment or otherwise of the duty which.
as correctly pointed out by the High Court, is chargeable under the Fiscal Rule of 1937 issued by the state Government.
The powers exercised 35 833 SCI/76 514 by the Financial Commissioner were clearly available to him under sections 59 and 22 of the Act and he has not, in our opinion, overstepped the same.
The first contention raised on behalf of appellant is, therefore, overruled.
It is next contended by counsel for the appellant that Rules 8 and 9 of the 1957 Rules are also invalid as they go beyond the scope of sections 16, 23 and 31 and Entry Sl of List ll of the Seventh Schedule to the Constitution.
Dwelling on this contention, counsel has submitted that as the taxing power of even the State Legislature is restricted to the imposition of excise duty or countervailing city on an excisable article which, according to section 3(6) of the Act, means inter alia an alcoholic liquor for human consumption implying thereby an alcoholic liquor in existence, the incorporation in Rule 9 of the 1957 Rules of the fiction making the licensee liable to pay duty at the prescribed rate on wastage in excess of permissible limit as if the said wastage had actually been removed from the Warehouse has the effect of imposing duty on an article which neither existed in the State nor was removed from the Bonded Warehouse thus violating the scope and extent of the taxing power.
, For a proper appreciation of the true legal position, it is necessary to advert to sections 3(6 b), 31, 32, 16 and 23 of the Act and Entry Sl of List II of the Seventh Schedule to the Constitution and the connotation of the term 'countervailing duty. ' "Section 3 (6 b) . 'excise duty ' and 'countervaling duty ' mean any such excise duty or countervailing duty as the case may be, as is mentioned in Entry Sl of List II in the Seventh Schedule to the Constitution.
Section 31.
Duty on excisable articles.
An excise duty, or a countervailing duty, as the case may be at such rate or rates as the State Government shall direct, may be imposed, either generally or for any special local area, on any excisable article (a) imported, exported or transported m accordance with the provisions of section 16, or (b) manufactured or cultivated under any licence granted under section 20.
Or (c) manufactured in any distillery established or any distillery or brewery licensed under section 21; "Provided follows: (i) Duty shall not be so imposed on any article which has been imported into India and was liable on importation to duty under the India Tarrif Act, 1894, or the .
(ii) xx xx xx xx xx xx Explanation.
Duty may be imposed under this section at different rates according to the places to which 515 any excisable article is to be removed for consumption, A or according to the varying strength and quality of such article "Section 32.
Manner in which duty may be levied. subject to such rules regulating the time, place and manner as the Financial Commissioner may prescribe, such duty shall be levied rateably, on the quantity of excisable article imported, exported, transported, collected or manufactured in, or issued from, a distillery, brewery or warehouse; Provided that duty may be levied (a) on intoxicating drugs by an acreage rate levied on the cultivation of the hemp plant, or by a rate charged on the quantity collected; (b) on spirit or beer manufactured in any distillery established, or any distillery or brewery licensed, under this Act in accordance with such scale of equivalents calculated on the quantity of materials used, or by the degree of attenuation of the wash or wort, as the case may be, as the state Government may prescribe; (c) on tari, by a tax on each tree from which the tari is drawn: Provided further that, where payment is made upon issue of an excisable article for sale from a warehouse established or licensed under section 22(a), it shall be made (a) if the state Government by notification so directs, at the rate of duty which was in force at the date of import of that article or (b) in the absence of such direction by the state Government, at the rate of duty which is in force on that article on the date when it is issued from a ware house.
* "Section 16.
Import, export and transport of intoxicants No intoxicant shall be imported, exported or transported .
1. except (a) after payment of any duty to which it may be liable under this Act, or execution of a bond for such payment, and (b) in compliance with such conditions as the state 1.
Government may impose." "Section 23.
Removal of intoxicant from distillery no intoxicant shall be removed from any distillery, brewery, 516 warehouse or other place of storage established or licensed under this Act, unless the duty, if, any, payable under Chapter V has been paid or a bond has been executed for the payment thereof.
"Entry 51 of List the of the Seventh Schedule to the Constitution Duties on excise on the following goods manufactured or produced in the State and countervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere in India: (a) alcoholic liquors for human consumption (b) opium, Indian hemp and other narcotic drugs and narcotics; but not including medicinal and toilet preparations containing alcohol or any substance included in sub para graph (b) of this Entry." The expression 'countervailing duty ' is not defined in the Act but its meaning has been made clear in the Judgment the this Court in Kalyani Stores vs The State of Orissa and or.(1) where it was observed _ "This bring the consideration of the meaning of the expression "countervailing duties" used in Entry 51.
List II of the Seventh Schedule to the Constitution.
The "expression "countervailing duties" has not been defined in .
the Constitution or the Bihar & Orissa Act 2 of 1915.
We have, therefore, to depend upon its etymological sense and the context in which it has been used in Entry 51.
In its etymological sense, it means to counterbalance; to avail against with equal force or virtue; to compensate for some thing or serve as an equivalent of or substitute for: sec Black 's live Dictionary, 4th Edn.
This would suggest that a countervailing duty is imposed for the purpose of countervailing or to avail against something with equal force or to compensate for something as an equivalent.
Entry in List II of the Seventh Schedule to the Constitution gives power to the State Legislature to impose duties of excise on alcoholic liquors for human consumption where the goods are manufactured of produced in the State.
It also gives power to levy countervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere in India.
The fact that countervailing duties may be imposed at the same or lower rates suggests that they are meant for counterbalance the duties of excise imposed on goods manufactured in the State.
They may be imposed at the same rate as excise duties or at a lower rate, presumably to equalise the burden after taking into account the cost of transport from the place of manufacture of the taxing (1) ; 517 State.
It seems, therefore, that countervailing duties are ment to equalise the burden on alcoholic liquors manufactured or produced in the State.
If no alcoholic liquors similar to those imported into the state are produced or manufactured, the right to impose counterbalancing duties of excise levied on the goods manufactured in the state will not arise.
It may, therefore, be accepted that countervailing duties can only be levied is similar goods are actually produced or manufactured in the state on which excise duties are being levied.
" lt will be seen that section 31 of the Act read with Entry 51 of` List II of the Seventh Schedule to the Constitution permits imposition of (i) excise duty by the state Government on any exisable article imported into or exported from or transported ill accordance with the provisions of section 16 of the Act which means after payment of any duty to which it may be liable under the Act or after execution of a bond for such payment and (ii) countervailing duty inter alia on Alcoholic liquors for human consumption manufactured or produced elsewhere in India.
The contention advanced on behalf of appellant which seems to proceed on the assumption that the Chandigarh Administration cant impose duty only if liquor is consumed in its territory is erroneous as, according to section 31 of the Act read with the aforesaid Entry 51 of List of the Seventh Schedule to the Constitution, countervailing duty can be imposed on liquor meant for consumption which is manufactured or produced elsewhere in India.
It is immaterial whether the liquor for which permits were obtained was consumed within the Union Territory of Chandigarh or was in existence in that territory or not.
What is material is whether permits were obtained for import from Uttar Pradesh of alcoholic Liquor meant for human consumption and the quantity showing in the permits left Uttar Pradesh.
In the present case, the liquor for which permits were obtained by the appellant was admittedly in existence and was meant for human consumption and did leave the appellant 's distilleries in Uttar Pradesh for being transported to his Warehouse in Chandigarh at his own risk and responsibility.
It is also not denied on behalf of the appellant that Portion of the liquor which exceeded the permissible limit of wastage did not reach the appellant 's Warehouse and was not found therein and the shortage remained unaccounted for.
It is thus evident that duty is not sought to be charged on an excisable article which was not in existence, as contended on behalf of the appellant but is sought to be charged on liquor which was actually manufactured and left Uttar Pradesh but was found short beyond the permissible limit and no reasonable explanation was tendered by the appellant in respect thereof.
There is accordingly no merit or substance in the second contention advanced on behalf of the appellant as well.
The decision of this Court in Bimal Chandra Banerjee vs State of Madhya Pradesh(l) which is strongly relied upon on behalf of the (1) ; 518 appellant is not applicable to the present case.
In that case, the condition introduced by the state Government in the purported exercise of its power under clause (d) and (h) of section 62(2) of the Madhya Pradesh Excise Act, 1915, in the appellants ' licenses prescribing the minimum quantity of liquor to be purchased by them from the Government and enjoining them to make compulsory payment of excise duty on the quantity of liquor which they failed to take delivery of was held to be invalid as it went beyond.
The provisions of sections 25, 26 27, 62(1) and ' clauses (d) and (h) of section 62(2) of the aforesaid Act.
In the present case, however, the liquor was lifted by the appellant from its distilleries in Uttar Pradesh and a portion thereof remained unaccounted for, as already stated, on arrival of the consignments at their destination.
For the foregoing reasons, the respondents were right in demanding the duty on the shortages.
In the result, the appeals fail and are dismissed with costs, limited to one set.
[/INST]Sections 53A and 53B of the Bombay Industrial Relations Act, 1946, were inserted in that Act by the Bombay Industrial Relations and Industrial Disputes (Gujarat Amendment) Act, 1972.
They relate to the constitution of joint management councils, which include representatives of the employees also, for the purpose of forestalling and preventing industrial disputes.
Consequent amendments were made in the Bombay Industrial Relations (Gujarat) Rules.
The appellants challenged the two sections on the ground that the State Legislature was incompetent to enact them.
According to the appellants, the impugned legislation falls under Entries 43, 44 and 52 of List I, VII Schedule to the Constitution, which relate to matters of incorporation etc.
The High Court held that they fall under Entries 22 and 24 of List III, which relate to labour welfare and industrial disputes, and that the State Legislature was competent to enact them.
Dismissing the appeal to this Court, ^ HELD: It has been recognised during the last hundred years that the wage earners should have an effective voice in the management of the industry in which they are working.
The concept of joint management of industry by the employer and the employee may have a wide connotation, because, the joint management councils may not only perform such functions as pertain to welfare of labour, that is, those relating to the various objectives mentioned in cls.
(a) to (f) of section 53B(1) but may also claim to exercise such functions as can be discharged by the board of directors.
This wider aspect of the joint management would however be impermissible under the impugned provisions, because the provisions should be so construed and implemented as would sustain their constitutional validity.
They have been enacted by the State Legislature and so the functions which can be performed by the joint management councils have to be of such a character as would pertain to welfare of labour or prevent industrial disputes.
If the impugned legislation, in pith and substance, relates to subjects which are within the competence of the State Legislature, the fact that there is an incidental encroachment on matters which are the subject matter of Entries in List I, would not affect the legislative competence of the State Legislature to pass the impugned legislation.
[628A, 629E] Rules in the very nature of things can operate only in that field in which the parent Act can operate, and hence, the impugned rules, likewise, relate to subjects which are within the competence of the State Legislature.
[628D]
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<s>[INST] Summarize the judgementAppeal No. 810 of 1967.
Appeal by special leave from the judgment and order dated August 3, 1966 of the Kerala High Court in Income tax Referred Case No. 49 of 1965.
K. Javaram, for the appellant.
S.T. Desai, R.N. Sachthey and B.D. Sharma for the respondent.
Sardar Bahadur Saharya. ,for the Intervener.
The Judgment of the Court was delivered by Shah, J.
In computing the income of the appellant 's father to tax for the assessment year 1959 60 the Income tax officer included Rs. 75,000 received under an agreement for cutting and removing trees from 500 acres of Mangayam Katchithode forest.
The Appellate Assistant Commissioner after calling ,for a report on certain facts confirmed the order.
But the Tribunal held that the receipt was of a capital nature and deleted it from the taxable income.
At the instance of the Commissioner of Income tax, the Tribunal referred the following question to the High Court of Kerala: "Whether on the ,facts and in the circumstances of the case, the Income tax Appellate Tribunal was correct in holding that Rs. 75,000/ being income from felling of trees from forests is not subject to income tax ?" The High Court answered the question in the negative.
We are of the view that the facts found by the Tribunal are not sufficient to enable us to record an answer to the question referred.
The Income tax officer held that the income was taxable because 500 acres of forest land was leased for "clear felling" by the father of the appellant and this fetched an income of Rs. 75,000/ .
What the expression "clear falling" meant was not investigated by the Income tax officer.
The Appellate Assistant Commissioner in dealing with the contention raised by the appellant that the receipt was of the nature of a Capital, observed: "The claim is based on the reasoning that the clear felling of ' forest trees amounts to sterilisation of a capital asset.
In other words clear felling is said to involve total destruction of the 549 forest.
It is admitted that the trees are of spontaneous growth and it has not been established that removal of trees has in any way affected the value of the property.
As a matter of fact, _clear felling is resorted to make the land more productive and more valuable.
At any rate the claim has not been substantiated beyond doubt and hence there is no scope for any relief.
" The Tribunal relying upon the observation of the Income tax officer "that the trees were not cut together with the roots but only 6" above the ground and that they were later on destroyed" held that there was "nothing to show that there was a diminution of capital assets".
On the other hand, the Income tax officer had given a clear finding that this was a case of "clear felling".
After making 'an extensive quotation from the Judgment of the High Court of Bombay in Commissioner of Income tax vs
N. Patwardhan(1), the Tribunal stated that the observations applied to the facts in the case before them, and on that account they upheld the claim of the 'appellant.
The High Court observed that "it was agreed that the Mangayam Katchithode forest was within the ambit of the Madras Preservation of Private Forests Act, 1949, and the statutory rules on the subject and that the expression "clear feeling" is an expression with a definite and specific meaning as far as such forests are concerned".
They then proceeded to quote r. 7 framed under the Madras Preservation of Private Forests Act, 1949, and after setting out conditions (b) & (c) observed that "the felling of the trees under the "clear felling" method will not permit a removal of the trees along with their roots.
On the other hand, the clear indications were that the felling of the trees under the clear indications were that the felling of the trees under the regeneration and future growth of the trees concerned.
In other words, what is contemplated by the clear felling method is not sterilisation of an asset but the removal of a growth ,above a particular height, leaving intact the roots and the stumps in such a manner as to ensure regeneration, future growth, further felling and subsequent income.
" On that view the Court held that the receipt of Rs. 75,000/ was a revenue receipt and not a capital receipt as held by the Appellate Tribunal.
The departmental authorities.
the Tribunal and the High Court have expressed different views on the import of the expression "clear ,felling" and about the true effect of the agreement.
The Income tax officer taxed the amount of Rs. 75,000/ on the footing that the 500 acres of forest lands were leased for clear felling.
The Appellate Assistant Commissioner held that the trees being of spontaneous growth and the falling of the trees not having (1) 550 affected the value of the property as a result of the clearance, the lands became more productive and the receipt was a revenue income.
The Tribunal held that the case being one of "clear felling" and the trees having been cut 6" above the ground and "that they were later on destroyed" it was a case of clear felling 'and the receipt was of capital nature.
The High Court was of the view that the "clear felling" of forest lands meant cutting trees and not removal of the roots so that there would be regeneration, future growth of the roots and the stumps and on that account the receipt was of revenue nature.
It appears that before the Income tax Officer the agreement dated Sept. 11, 1957 was not produced.
After the Appellate Assistant Commissioner remanded the case to the Income tax Officer the latter submitted the "remand report" and at that time the agreement was produce.
The Tribunal in support of its conclusion referred to the preamble of the document and the conditions thereof.
The learned Judges of the High Court observed that they did not place any reliance on the extracts in the lease given in paragraph 2 of the statement of the case for coming to the conclusion they had reached.
Why the High Court thought it fit to discard the recitals, is not clear from the record.
The facts found being not clear, it is difficult to record any conclusion whether the receipt was of a revenue nature or of a capital nature.
We therefore call upon the Tribunal to submit to this Court a supplementary statement setting out the terms of the agreement between the father of the appellant relating to the rights conveyed to, the lessees in the forest lands and especially about the import of the term relating to "clear felling".
The Tribunal will submit the supplementary statement of the case only on the basis of the evidence on the record and will not take any additional evidence.
The report to be submitted within three months from the date on which the papers reach the Tribunal.
Shah, J.
By our order dated February 13, 1969, we called for a supplementary statement of the case setting out the terms of the agreement conveying the rights in the forest trees to the lessees, and the true import of the expression "clear felling".
The Income tax Appellate Tribunal has submitted a supplementary statement o,f the case.
The Tribunal has set out the relevant terms of the agreement and has also observed that the import of the expression "clear felling" is that "all trees except casuring are to be felled at 'a height not exceeding six inches from the ground, the barks being left intact on the stump and adhering to it all round the stump without being torn off or otherwise changed".
There is no suggestion that there were any casurina trees in the forest lands let out to the lessees.
It is common ground also that the trees in the forest were of spontaneous growth.
The 551 Tribunal has found that by the use of the expression "clear felling" it was stipulated that the trees are to be cut so that 6" of the trunk with the barks intact and adhering to it all round the stump is left.
This is with a view to permit regeneration of the trees.
The question whether receipts from sale of trees by an owner of the land who is not carrying on 'business in timber may be regarded as income liable to tax has given rise to.
some difference of opinion in the High Courts.
In Commissioner of Income tax, Madras vs
T. Manavedan Tirumalpad,(1) a Full Bench of the Madras High Court held that the receipts ,from sale of timber trees by the owner of unassessed forest lands in Malabar were revenue and not capital.
The Court observed that if income from the sale of coal from a coal mine or stone won from a quarry or from the sale of paddy grown on land be regarded as income, but for the special exemption granted under the Income tax Act, there is no logical reason for holding that income from sale of trees is not income liable to tax.
In re Ram Prasad(2) a Division Bench of the Allahabad High Court held that receipt from sale of timber is income liable to be taxed and is not a capital receipt.
The case arose under the Government Trading Taxation Act 3 of 1926.
In Maharaja of Kapurthala vs Commissioner of Income tax, C.P. and U.P.(3) the Oudh Chief Court held that net receipt from the sale of forest trees is income liable to income tax, eventhough the ,forest may be gradually exhausted by fellings.
The Court further observed that income from the sale of forest trees of spontaneous growth growing on land which is assessed to land revenue is not agricultural income within the meaning of section 2(1 ) (a) of the Income tax Act and is not exempt from income tax under section 4(3)(viii) of the Act.
In Raja Bahadur Kamakshya Narain Singh vs Commissioner of Income tax, Bihar and Orissa(4) a similar view was expressed by the Patna High Court.
In Fringford Estates Ltd., Calicut vs Commissioner of Income tax, Madras(b) it was held that profits realised from the sale of timber were trade profits and were liable to income tax.
In that case the assessee Company formed with the object of purchasing, clearing and improving of estates and the cultivation and sale of tea, coffee etc.
in such estates, purchased a tract of land part of which had already been cultivated with tea and the rest was a jungle capable of being cleared and made fit for plantation.
The (1) I.L.R. 54 Mad.21.
(2) I.L.R.52 All.
(3) (4).
(5) 552 Company entered into an agreement with a timber merchant for clearing a part of the forest of all trees and for sale of the trees m the market.
This was held to be a part of the business activity of the Company.
The cases on the other side of the line are to be found in Commissioner of Income tax, Bombay South vs N.T. Patwardhan(1) in which a Division Bench of the Bombay High Court held that when old trees which stood on the land of the assessee were disposed of with their roots "once and for all", the receipts were capital.
The Court observed (p. 318): "The asset of the man was the land with the wild growth of trees on it.
If the land with the trees had been sold, there could have been no doubt that the sale was a realisation of capital and it would not have been possible to argue that the transaction in so far as it involved a sale of the trees was a sale producing income and the remaining part of the transaction was a capital sale.
In the present case the land is retained by the assessee but a part of the asset is disposed of in its entirety by selling the trees with roots once and for all.
" In State of Kerala vs Karimtharuvi Tea Estate Ltd.(2) the Kerala High Court held in a case arising under the Kerala Agricultural Income tax Act, 1950, that the amount realised by sale as firewood of old and useless gravelia trees grown and maintained in tea gardens for the purpose of affording shade to tea plants is capital receipt and not revenue receipt.
The Court observed: "The gravelia trees were grown and maintained for the sole purpose of providing shade to the tea bushes in the tea estates of the assessee.
That such shade is essential for the proper cultivation of tea cannot be disputed and the trees should hence be considered to be as much a part of the capital assets of the company as the tea bushes themselves or the equipment in its ,factories.
Some of the gravelia trees became old and useless with the efflux of time and they naturally had to be cut down and sold.
The sale proceeds of such trees cannot possibly amount to a revenue receipt." In Commissioner of Income tax, Mysore V.H.B. Van Ingen(3) the Mysore High Court held that the assessee who had purchased a coffee estate of which a part had been planted with coffee plants and the rest was jungle, and had cleared the jungle (1)41 I.T.R. 313.
(2) 5 I.T.P 129.
(3) 553 for the purpose of planting coffee and had sold the trees felled, price realised by the sale of the trees was a capital and not a revenue receipt, because the trees had grown spontaneously, and the assessee had purchased the estate including the trees.
It is not necessary for the purpose of this case to enter upon a detailed analysis of the principle underlying the decisions and to resolve the conflict.
On the finding in the present case it is clear that the trees were not removed with roots.
The stumps of the trees were allowed to remain in the land so that the trees may regenerate.
If a person sells merely leaves or fruit of the trees or even branches of the trees it would be difficult (subject to the special exemption under section 4(3)(viii) of the Income tax Act, 1922) to hold that the realization is not of the nature of income.
Where the trunks are cut so that the stumps remain intact and capable of regeneration, receipts from sale of the trunks would be in the nature of income.
It is true that the tree is a part of the land.
But by selling a part of the trunk, the assessee does not necessarily realise a part of his capital.
We need not consider whether in case there is a sale of the trees with the roots so that there is no possibility of regeneration, it may be said that the realisation is in the nature of capital.
That question does not arise in the present case.
The appeal fails and is dismissed with costs.
G.C. Appeal dismissed.
[/INST]By a sale deed executed on November 24, 1944 the appellant company purchased certain land located in an area now part of West Pakistan.
After the partition of India, the company, on the basis of a registered sale deed, was allotted certain land in Kapurthala in 1950 in lieu of the land abandoned in Pakistan.
On a report made by the Managing Officer, Respondeat No. 3 on August 30, 1960 recommending cancellation of the allotment of land to the company and after hearing the company, the chief Settlement Commissioner rejected the registered sale deed and came to the conclusion that at the time of partition the company did not own any land in Pakistan nor was it in occupation of any such land.
Therefore by his order dated February 27, 1961, he set aside the permanent rights acquired by the company.
HELD: The order of the Chief Settlement Commissioner must be quashed on the ground that there is no finding of the Chief Settlement Commissioner that the company had obtained allotment of the land "by means of fraud, false representation or concealment of any material fact" within the meaning of section 24(2) of the Act.
It is true that the Chief Settlement Commissioner had recorded a finding that the company had not proved its title to any land in the area now part of Pakistan and the allotment was "undeserved".
But this is not tantamount to a finding that the allotment had been obtained by a false representation or fraud or concealment of material facts.
Such a finding is a condition precedent for faking action under section 24(2) of the Act.
The condition imposed by the section is mandatory and in the absence of any such finding the Chief Settlement Commissioner had no jurisdiction to cancel the allotment made to the company under section 24(2) of the Act.
[537 A D]
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<s>[INST] Summarize the judgementAppeal No. 2462 of 1968.
Appeal by Special Leave from the Judgment and Order dated 17 5 1968 of the Allahabad High Court in First Appeal No. 13 of 1956.
M. N. Phadke, M. Qamaruddin, (Mrs.) M. Qamaruddin, M. Y. Omar, N. Aly Khan and V. M. Phadke for the appellant.
889 Lal Narain Sinha, D. P. Singh, section C. Agarwal, A. Gupta, section Mohdkazum and P. P. Singh; for the Respondent.
The Judgment of the Court was delivered by UNTWALIA, J.
This is an appeal by special leave.
Bibi Saddiqa Fatima, the appellant, was the plaintiff in Suit No. 86 of 1952 filed in the Court of the Civil Judge it Aligarh in which the defendant was Saiyed Mohammad Hasan.
He was the sole respondent in this appeal also.
He died during the pendency of the appeal and on his death his legal heirs and representatives were substituted as respondents.
For the sake of convenience hereinafter in this judgment by the respondent would be meant the original respondent.
One Smt.
Sughra Begum was a Shia Muslim Lady.
She was a resident of Asgharabad in the District of Aligarh.
She was possessed of vast Zamindari and other properties.
On October 6, 1928, she created a waqf of the entire properties dividing them in three qurras.
Raja Haji Saiyad Mohammad Mahmood Hasan was appointed by the waqifa as the Mutawalli of qurra No. 1.
His brother was appointed the Mutawalli of the second qurra.
The waqifa appointed herself the Mutawalli of the third qurra.
The dispute in this case relates to a property concerning qurra No. 1.
The Raja 's first wife was Smt.
Akbari Begum.
She died in the year 1931 leaving behind four sons and six daughters.
Raja Sahib, when he was about 50 years of age, took the plaintiff as his second wife in the year 1933.
The plaintiff, at the time of her marriage with the Raja, was a young lady of seventeen.
Raja died in September, 1939.
On January 22, 1935, a permanent lease was executed on behalf of one Saiyed Anwarul Rahman in respect of the disputed land in the name of the plaintiff.
The rent fixed was Rs. 80/ per year.
Between the years 1937 and 1939 a Kothi (Bungalow) was constructed on the said land, which was named as 'Mahmood Manzil '.
The suit property in this litigation is the said Kothi together with the land appertaining to it.
In short the plaintiff 's case is that the disputed property belongs to her.
The defendant was inducted as a tenant of the Kothi an and from 1st of March, 1947 on a rental of Rs. 60/ per month.
He paid rent upto May, 1950 but did not pay any rent thereafter.
In the year 1952, the plaintiff served a notice on the defendant to pay the arrears of rent and deliver vacant possession of the Kothi.
The defendant, in his reply, refuted the claim of the plaintiff and asserted that the Kothi did not belong to her nor was be a tenant of the same.
Hence the appellant instituted the suit for realisation of arrears of rent, damages and recovery of possession of the suit property.
The respondent, inter alia, pleaded that Raja Sahib, the.
first Mutawalli of qurra No. 1, had acquired the lease of the land and constructed the Kothi with the waqf fund as Mutawalli of the waqf.
It was a waqf property.
After the death of the Raja, the respondent became the Mutawalli of qurra No. 1 including the Kothi in question.
He occupied the Kothi as a Mutawalli and not as a tenant.
The Trial Court accepted the case of the defendant, rejected that of the plaintiff and 6 329SCI/78 890 dismissed her suit.
The ' Allahabad High Court has dismissed her appeal.
She has preferred this appeal in this Court on grant of special leave.
Shri M. N. Phadke advanced a very strenuous argument in sup port of this appeal.
Shri Lal Narayan Sinha combated his argument on behalf of the respondent.
It would be convenient to refer to some more facts and facets of the case from the pleadings of the parties and judgments of the Courts below before enunciating and enumerating the submissions made on their behalf.
The case pleaded in the plaint by the appellant was like this, Raja Sahib out of great love for the plaintiff "used to pay her a handsome amount every month as pin money and also a good deal of money occasionally.
" The plaintiff, with the object of constructing a Kothi, took on lease the disputed land measuring about 4 bighas and had been paying the annual rent of Rs. 80/ since the execution of the lease.
She pleads in para 4: "After the execution of the said lease, the plaintiff with her personal fund built a kothi and the out houses on the land mentioned in paragraph No. 3 above and named it as Mahmood Manzil after the name of her husband.
The construction of this Kothi bad been completed by May 1938, after which the plaintiff herself used lo stay in that Kothi whenever she came from Asgharabad to Aligarh." The plaintiff bad only one daughter born to her out of the wedlock with the Raja.
She is Smt.
Abrar Fatima.
She was married on the 25th May, 1950 to one Saiyed Mohammed Raza Ali Khan.
The defendant was quite obedient and faithful to the plaintiff until the marriage of her daughter.
But after the said marriage, he gradually turned hostile and thereupon the plaintiff mostly lived with her daughter.
According to the respondent 's case in his written statement the lease was taken by Raja Sahib and the sum of Rs. 786/spent on 'Nazrana ' etc.
for taking the lease was paid by him from the income of the waqf property and he constructed the Kothi from the wakf fund of Asgharabad estate.
He had neither any money of his own to invest in acquisition of the property nor was the property acquired by the plaintiff with her personal fund.
The appellant was examined on commission as a witness to support her case at the trial.
In her examination in chief, she stated that her husband used to give her Rs. 500/ per month as pin money besides, meeting her expenses regarding food and clothing.
Over and above this, he used to send money on the occasions of Id and Bakrid and also gave her money whenever she demanded.
She constructed the Kothi at Aligarh by investing about Rs. 20,000/ .
In other words she meant to convey in her examination in chief that she had acquired the land and constructed the Kothi out of the savings she had from the various amounts of money given by the Raja monthly or from time to time.
At a later stage of her deposition (probably in cross examination) she demolished her case and claimed to be in possession of Rs. 50,000/ at the time of the death of her husband, 891 which sum was her total savings out of the money paid to her monthly or from time to time by the Raja.
Thus in her evidence she could not explain as to out of which personal fund she claimed to have acquired the disputed property.
The Civil Judge framed for trial several issues out of which issues 1 and 5 were, in the following terms "1.
Whether the plaintiff is the owner of the property in suit as alleged and is she entitled to the possession claimed ? 5.
Whether the defendant possesses the disputed property as the Mutawalli ' as alleged by him The defendant 's case was that the 'Patta ' was obtained by the old Raja tinder the influence of her young wife benami in her name though it was acquired with the waqf fund.
The Raja, as Mutawalli, was the real lessee of the land.
He had constructed the Kothi out of the income of the waqf property.
A Mutawalli is not an owner of the waqf property, but whatever property of the waqf was there from before or acquired subsequently must, ordinarily, be in the name of the Mutawalli.
A property could be acquired in the name of any beneficiary, like the plaintiff, but she would be; merely a benamidar of the Mutawalli and the property will be a waqf property.
The Civil Judge has noted in his judgement that the plaintiff did not put forth a plea that the Kothi was built by late Raja out of his personal money and that she was owner, on the basis of the equitable deoctrine of advancement.
He has said further: "Thus the only point on which the parties were at issue was with respect to the source of the money out of which the patta was obtained and the building constructed and the plaintiff could succeed only if she proved that she had obtained the patta and built the kothi out of the money given to her by her late husband as pocket expenses, etc.
" The Civil Judge also remarked "Had she stated that she built the kothi out of the money which she had saved, that would have been consistent with her allegations in the plaint.
But she admitted that the whole of her savings were still with her and that out of them she had spent a little when she filed the present suit." The Trial Court, thereafter, considered the voluminous documentary evidence in the light of the oral evidence adduced and came to the conclusion that the plaintiff did not provide any money either for the lease of the land or for the construction of the Kothi thereon and that the money for both the purposes was provided out of the waqf estate.
Hence it was held, while deciding issues 1 and 5, that the plaintiff was not the owner of the Kothi in suit and the defendant was in possession of it in his capacity as the successor Mutawalli.
892 It would be advantageous to note at this stage the stand taken by the appellant in the High Court in her Memo of Appeal as also in argument.
On perusal of the grounds set out in the Memorandum of Appeal, especially ground Nos. 6, 8, 9, 11, 13 and 27, it would appear that the case made out therein was that the Raja had his personal money kept in the waqf estate treasury alongwith the waqf money.
The amount spent in constructing the Kothi was mostly taken out of the treasury from his personal fund with the intention of making his wife the owner of the property even though the doctrine of advancement did not apply in India, and that the observation of the learned Civil Judge that the plaintiff failed to prove that she did not provide any money out of her personal fund was wholly irrelevant for the decision of issue No. 1.
In argument, however, a stand like the one taken in the Trial Court was reiterated but consistently and concurrently rejected because the evidence in favour of the defendant 's case was so overwhelming to show that the lease had been taken and the Kothi had been constructed with the money coming out of the waqf fund that no other view was reasonably probable to be taken.
At one place in its judgment the High Court says "Counsel for the appellant has strongly relied on these documents in proof of the fact that the Kothi was constructed with her money and belonged to her." In the teeth of the overwhelming evidence the appellant was obliged to take 'an entirely new stand in her petition for special leave and in the argument before us.
In paragraph 23 of the petition it was stated That the case of the applicant had been that the lease was obtained with the applicant 's funds and that she had constructed the Kothi with her own money and it was also her alternative case put forward before the Hon 'ble High Court that even if it be assumed that the money utilised for constructing the Kothi did not pass directly from the plain tiff 's hand: and even if it be the finding of the Court that the money so utilised bad proceeded from Raja Mahmudul Hasan then on the admitted case of the defendant that this fund was waqf fund, the plaintiff 's claim ought to have been decreed inasmuch as on the ground that the usufruct or the profit of the waqf property though arising out of the waqf property did not belong to waqf as waqf property but it was by its very nature the property of the beneficiary and in the absence of any evidence to the contrary Raja Mahmoodul Hasan.
I held that those funds for the beneficiaries and the amount spent by him in the construction of the Kothi should be the money belonging to the applicant." Mr. Phadke made the following submissions (1) The Raja intended to acquire the land on lease and construct the Kothi for the plaintiff by investing from time to time money taken out of the waqf estate treasury, which had the effect of disbursement and payment of the money by the Mutawalli to his wife, 893 the beneficiary, for the purpose of the, acquisition of the Kohi.
The source of Money in that event is immaterial.
(2) The intention of the Raja to provide a separate Kothi to the plaintiff evidenced by numerous documents taken and standing in her name must be respected.
(3) The Raja went on giving money in driblets for construction of the Kothi by taking out the money from the waqf fund from time to time.
It was open to him to do so in accordance with clause 18 of the waqf deed Ext.
(4) The intention of the Raja is further fortified 'by the recital in his Will Ext.
(5) That there is a number of circumstances in support of the contentions aforesaid.
(6) The rules of pleading should not be too strictly applied in India and no party should be defeated on that account when both sides adduced evidence and proceeded to trial of the real issues in the case 'with their full knowledge and understanding.
(7) That there is no substantial variance in the case made out in the pleadings and the evidence and in argument either in the Courts below or in this Court.
(8) The burden of proof to displace the ostensible title of the appellant and to show that she was a benamidar was on the respondent.
In absence of any clinching evidence on either side, the ostensible title prevails.
(9) Although the doctrine of advancement does not apply in India, the Mutawalli being the owner of the waqf property had full and unlimited power of disposal over its usufruct and income.
Mr. Lal Narayan Sinha, while refuting the submissions made on behalf of the appellant, contended that it is a settled law that the question whether a particular transaction is, benami or not is purely one of fact and this Court in exercise of its jurisdiction under Article 136 of the Constitution does not, ordinarily and generally, review the comment findings of the Courts below in that regard.
Counsel submitted that the Courts below had correctly applied the Muslim law applicable to Shias in respect of the waqf property and its income.
They have rightly come to the conclusion that the suit property appertained to the waqf.
It was clear, according to the submis 894 sion of Mr. Sinha, that the parties went to trial to prove their respective cases as to whether the property had been acquired with the personal funds of the Plaintiff or those of the waqf.
The plaintiff 's case failed in view of the overwhelming evidence against her and she should not be permitted to make out an entirely new case in this Court.
He also contended, firstly, that the theory of onus probandi is not strictly applicable when both parties have adduced evidence;in such a situation it becomes the duty ' of the Court to arrive at the true facts on the basis of reasonable probabilities.
Secondly, in the instant case the strict tests to prove the benami character of the transaction cannot be applied, as, to do so will be in the teeth of the, well settled principles of Mohammedan law in relation to waqfs.
We proceed to examine the correctness of the rival contentions of the parties but not exactly in the Order it has been stated above.
It is undisputed in this case that a valid waqf was created by Smt.
Sughra Begum.
It is further indisputably clear from the waqf deed that except a portion of money which was to be spent for public, religious or charitable objects the waqf was primarily of a private nature for the benefit of the.
settler 's family and their descendants, which is called wakf alal aulad.
The ultimate object of the waqf was to spend income, if any, in the service of the Almighty God.
In Abdul Fata Mahomed vs Rasamaya (1) their Lordships of the Privy Council held that the gift to charity was illusory, and that the sole object of the settler was to create a family settlement in perpetuity.
The waqf of this kind was, therefore, invalid.
Ibis decision aforesaid caused considerable dissatisfaction in the Mohammedan community in India.
This led to the passing of the which was made retrospective in opera tion by a subsequent Act of 1930.
In view of the Validating Act of 1913 the validity of the wakf was beyond the pale of challenge.
Although in respect of the law applicable to waqfs there is some difference in regard to some matters between the Shia law and the various other schools of Mohamedan law applicable to Sunnis, in very many fields the law is identical.
After the Validating Act of 1913, on the basis of the law as it prevailed even before, creation of a waqf for the purpose of the maintenance of the members of the waqif 's family and their descendants is also a charitable purpose.
We now proceed to notice some salient features of the law as applicable to waqfs and especially of the Shias.
Tyabji 's Muslim Law, Fourth edition, Chapter X deals with waqf.
According to Shia law the waqf is irrevocable after possession is given to the beneficiaries or the Multawalli.
The settler divests himself of the ownership of the property and of everything in the nature of usfufruct from the moment the wakf is created.
In purely metaphorical sense the expression "ownership of God" is used but unlike Hindu Law, since conception of a personal God is not recognized, there is no (1) 22 Indian Appeals, 76. 895 ownership of God or no property belongs to God in the jural sense, although "the ownership of the property becomes reverted in God as he is originally the owner of all things" (vide page 523).
The Shia authorities considered the property as transferred to the beneficiaries or to the object of the, waqf.
Strictly speaking, the ownership of the waqf property has no jural conception with any exactitude.
The corpus is tied 'down and is made inalienable.
Only the usufruct and the income from the corpus of the waqf property is available for carrying out the objects of the wakf.
The Sharaiu 'l Islam says "Waqf is a contract the fruit or effect of which is (a) to tie up the original and (b) to leave its usufruct free " "the waqf or subject of appropriation (corpus) is transferred, so to become the property of the mowkoof alehi, [or 'person on whom the settlement is made '] for he has a right to the advantage or benefits (usufruct) to be derived from it." (vide page 494, In the foot note at the same page occurs a passage which runs thus "But it should not be overlooked that question about ownership of property after dedication, refers merely to scientulla juris, supposed to remain undisposed of although entire usufruct, (all benefits, & C.) are assigned away.
Question in whom property rests, therefore, entirely academical.
" Mutawalli is like a Manager rather than a trustee (see page 498).
The Mutawalli, so far as the waqf property is concerned, has to see that the beneficiaries got the advantage of usufruct.
We have already pointed out that under the Shia law the property does not remain with the waqif.
It is transferred to God or to the beneficiaries.
At page 554 of Tyabji 's famous book it is stated : "The support and maintenance of the waqf 's family, & c. would seem under the Act to be deemed a purpose recognized by the Muslim law as religious, pious or charitable : section 2.
This view was put forward by Ameer Ali, J., with great learning in his dissenting judgment in Bikani Mia 's case." ' Section 527 at page 593 runs thus "The mutawalli has no ownership, right or estate in the waqf property: in that respect he, is not a trustee in the technical sense : he holds the property as a manager for ful filling the purpose of the waqf.
" A contrary statement of law at page 202 of Mullas Mohamedan Law, seventeenth edition based on the decision of the Allahabad High Court in Mohammad Qamar Shah Khan vs Mohammad Salamat Ali Khan(1) (1) A.I.R. 1933 Allahabad 407.
896 to the effect that "the mutawalli is not a mere superintendent or manager but is practically speaking the owner" is not correct statement of law.
In a later Full Bench decision of the same court in Moattar Raza and others vs Joint Director of Consolidation, U.P. Camp at Bareilly and others(1) while over ruling the earlier decision, it has been said at pages 513 14 : "the legal status and position of a mutawalli under a waqf under the Musalman Law is that of a Manager or Superintendent.
" The general powers of the Mutawalli as mentioned in section 529 of Tyabji 's book are that he "may do all acts reasonable and proper for the protection of the wakf property, and for the administration of the waqf.
" It will be useful to point out the Law as regards, distribution of distributable income of the waqf properties amongst the beneficiaries as mentioned in the various subsections of section 545 at pages 606 608.
Unless a different intention appear, subsection (4) says: "The benefit of a waqf for a person 's "sons and his children, and the children of his children for ever so long as there are descendants, is taken per capita, males and females taking equally and the children of daughters being included.
" Attention must be called to an important statement of law in the well known authoritative book of Mohamedan Law by Ameer Ali Vol. 1, fourth edition, page 472.
It runs thus : "It is lawful for a mutawalli with the income of a waqf to erect shops, houses, & c., which may yield profit to the waqf, as all this is for the benefit of the waqf.
All properties purchased by the mutawalli out of the proceeds of the waqf become part of the waqf and are subject to the same legal incidents as the original waqf estate." Mr. Phadke cited the decision of this Court in Ahmed G. H. Ariff & Ors.
vs Commissioner of Wealth Tax, Calcutta(2) and contended that the right of the beneficiaries to get money out of the income of the waqf property for their maintenance and support was their property.
In our opinion the case does not help the appellant at an in regard to the point at issue.
A hanafi Muslim had created a wakf alalaulad and on a proper construction of the relevant clauses in the waqf deed it was held that the aliquot share of the income provided for the beneficiaries was not meant merely for their maintenance and support but even if it was so, it would be an asset within the meaning of section 2 (a) of the Wealth Tax Act, 1957.
The definition of the term 'asses, was very wide in the Wealth Tax Act.
The share of the income which a beneficiary was getting under the said waqf was assessable to income tax and following the particular method of evaluation it was held to be an asset for the purposes of the Wealth Tax.
The question at issue in the present case is entirely different as will be shown and discussed (1) A.I.R. 1970 Allahabad, 509.
(2) ; 897 hereinafter.
But in support of what we have said above in relation to the waqf property and the position of the Mutawalli we may quote a few lines from tills judgment also which am at page 24 : "As mentioned before, the moment a wakf is created, all rights of property pass out of the Wakif and vest in the Almighty.
Therefore, the Mutawalli has no right in the property belonging to the wakf.
He is not a trustee in the technical sense, his position being merely that of a superintendent or a manager.
" It would be convenient to briefly discuss the questions of fact and the evidence in relation thereto before we advert to the discussion of some other questions of law argued before us on either side as those principles of law will be better"appreciated and applied in the.
background of the facts of this case.
As has been stated already the evidence is overwhelming on the question as to what was the source of money for the acquisition of the disputed property, either the land or the kothi.
It came from the waqf fund.
This position could not be seriously challenged before us.
What was argued will be alluded to a bit later.
We may just cursorily refer to some, of the pieces of the evidence on the question aforesaid.
A 35 is a written direction by the Raja to Mahmud Syedullah Tahvildar directing him to debit a sum of Rs. 741/ to his personal account for the acquisition of the.
plot in question.
The details of the expenses and the Nazrana money are given therein.
The payment was from the funds of the waqf estate.
But the Raja made a feable and futile attempt to get this debit entry made as a repayment of the loan money said to have been advanced by him to the waqf estate.
The High Court as also the Trial Court has rightly remarked that the entry like Ext.
A443 was got made by the Raja in the account books of the waqf estate as a fictitious countervailing entry in his attempt to show that some of the sums of money which he had withdrawn from the waqf estate were on account of the repayment of his alleged loans.
The High Court has rightly pointed out that they were all fictitious entries.
Mr. Phadke endeavored to show that the approximate gross income of the waqf estate was not Rs. 43,515/ as is shown by the High Court but it was in the neighbourhood of Rs. 58,000/ .
We shall accept it to be so.
Thus the net distributable income at the disposal of the Raja was about Rs. 30,000/ instead of Rs. 15,5101 mentioned in the judgment of the High Court.
There were 13 beneficiaries in qurra No. 1 of which the Raja was the Mutawalli.
In that capacity he was getting a monthly allowance of Rs. 70/ only from the estate account.
He bad no other personal property or source of income from which he could advance any loan to the waqf estate.
Nor could it be shown that the waqf estate at any point of time was in need of any loan from the Raja.
Therefore, the attempt of the Raja to put a show of acquiring the land in the name of his young wife out of his personal money was a very crude attempt to disguise the real source of that 898 money.
The concurrent findings of the Courts below that the expenses for the acquisition of the lease were incurred from the waqf estate funds could not be successfully assailed.
The High Court has referred next to the question of payment of rent of the land to the lessor.
The plaintiff produced six rent receipts.
13 and 14 were of the year 1952 when disputes between the parties had started.
As regards four other receipts the High Court was inclined to believe the explanation of the defendant that the plaintiff had surreptitiously obtained their possession.
On the other band, the defendant filed four rent receipts of the period when the Raja was alive.
Since the lease had been taken in the name of the plaintiff, naturally all the receipts were in her name.
The High Court has also referred to the satisfaction of a decree for rent obtained by the lessor in a suit instituted against the plaintiff as well as the defendant and has come to the conclusion that the entire decretal amount, the expenses of the auction sale and the costs were deposited in the Court out of the waqf fund.
Then comes the evidence regarding the construction of the Kothi.
All documents for obtaining permission from 'be Municipal Board and for electric connection etc.
obviously stood in the name of the plaintiff as the lease wag, standing in her name.
As in the High Court, so here, Mr. Phadke strongly relied upon those documents to show that the Kothi was constructed for and on behalf of the plaintiff.
As already stated the stand in the High Court was, that it was constructed with her money.
Here it was a completely different stand.
It was urged that the money came from the waqf fund but as and when the money was being spent by the Raja for the construction of the Kothi it amounted, in law, as payment of the money by the Raja to his wife and the construction of the Kothi should thus be treated as having been made with her money.
We shall scrutinize the correctness of this branch of the argument a bit later.
Numerous documents are mentioned in the judgments of the Trial Court as also of the High Court to show that every bit of expenditure in the construction of the Kothi came out of the ' waqf fund under the direction of the Raja.
We need not discuss these documents in any detail as the concurrent finding of the Courts below could not be assailed in face of these documents and that led the appellant to make a somersault here and to take an ingenuous stand.
These documents are Ext.
A 449 series; Ext.
A 450 series; Ext.
A 452; Ext.
A 453; Ext.
A 455; Ext.
A 458; Ext.
A 460; Ext.
A 463; Ext.
A 486; Ext.
A 491; Ext.
A 493 series; Ext.
A 495 and Ext.
A 518.
A 3 shows that Ramlal, a mason who had worked as a contractor in the construction of the Kothi instituted a suit for recovery of Rs. 2,917/10/ , the amount which was not paid during the life time of the Raja.
The suit was instituted in the year 1941.
It was decreed in 1942.
A 36, A 43 and A 44 are the receipts in proof of the fact that eventually the decree was satisfied by the defendant on payment of money to Ramlal.
A 45 is a similar receipt dated January 2, 1942 showing payment of Rs. 923/ by the defendant to Zafaruddin in satisfaction of his decretal dues on account of the construction of the Kothi.
The 899 plaintiff 's claim of the payment of Rs. 2,000/ to Ramlal was too slippery to be accepted by the Courts below and it need not detain us either.
The High Court has also relied upon two letters Exts.
A 28 and A 27 written by the Raja to the Supervisor of the building operations indicating that if the foundation of the Kothi was not laid within a certain time, loss would be caused to the Riyasat namely the waqf estate.
It may be emphasised here that the countervailing fictitious entries got made by the Raja were very few and far between and the entire amount spent in the acquisition of the Kothi which was in the neighbourhood of Rs. 21,000/ (both for the land and ,the building) could not be.
shown to be the personal money of the Raja by this spurious method.
A major portion of the total amount obviously, clearly, and admittedly too, had come from the waqf fund., And that compelled the appellant to take an entirely new stand in this Court.
We now proceed to deal with the new stand.
It is necessary in that connection to refer to some of the important recitals in Ext.
A 2 the waqf deed.
In the preamble of the document it is recited that the waqf is being created with some religious purposes and for the regular support and maintenance of the descendants of the waqif for all times to come so that they may get their support from generation to generation.
The ultimate object is for charitable purposes in the service of the God Fisaliilah.
After referring to the Act of 1913 it is stated : "Hence the entire property given below having become Waqf Alal aulad in perpetuity, has become, uninheritable and non transferable".
Each Mutawalli of his respective qurra was appointed " the principal manager with full and complete powers of entire waqf property." From clauses 7 and 13 of the waqf deed it was rightly Pointed out on behalf of the appellant, and not disputed by the respondent either, that Rs. 6,000/ amiually had to be spent by Mutawalli of qurra No. 1 for the religious purposes mentioned therein.
This was the first obligation of the Mutawalli before he could apply the rest of the usufruct in the support and maintenance of the family beneficiaries.
Then comes the most important clause in the waqf deed namely clause 18.
The said clause as translated and printed in the paper book runs as follows "Syed Mahmood Hasan the Mutawalli of the, first lot is vested with the power to fix stipends for his children and their descendants and for his wives during his life time whatsoever he pleases or to lay down conditions by means 0 a registered document or may get any writing kept reserved in the custody of the district judge, so that after him it be binding upon every Mutawalli, such in case he might not get any writing registered or kept in the custody of the district judge of the district, then under such circumstances the twenty percent (20%) of the income of the waqf property having been set apart for the expenditure of collection and realisation and right of the, Mutwalliship and the amount of Rs. 6,000/ (Rupees six thousand) for meeting 900 the expenditure of Azadari ' as detailed at para No. 7 above; the entire remaining will be distributed among the heirs of Mahmood Hasan according to their respective legal share provided under Mohammadan Law.
" The High Court referring to this clause has said that the power given to the Raja in clause 18 could be exercised by him during his life time in the fixation of the stipends but it was to come in operation after his death.
With the help of learned counsel for both sides,.
we looked into the original clause 18 and found that there is some inaccuracy in the translation as made and printed in the paper book.
But substantially there is not much difference.
Correctly appreciated, the meaning of the clause is that Saiyed Mohammad Hasan, the Raja, was given a special power and right to fix stipends for his children, wives and descendants either by a registered document and or by a document in writing kept in the custody of the District Judge so that after him it may be binding on every subsequent Mutawalli.
If he failed to do so, then after setting apart 20% of the gross income to meet the expenditure of collection and realisation and Rs. 6,000/the charitable expenditure mentioned in clause 7, the balance was to be distributed amongst the heirs of Saiyed Mohammad Hasan according to their respective legal shares provided under the Mahomedan law.
The bone of contention between the parties before us was that according to the appellant such a power of fixation of stipends for the wives and children was given to the Raja even to be operative during his life time, while according to the respondent it was only to be effective after his death.
We do not think it necessary to meticulously examine the terms of clause 18 and resolve this.
difference.
We shall assume in favour of the respondent that, in terms, the power was given which was meant to be operative after his death.
But then, does it stand to reason that he had no such power during his life time ? On a reasonable view of the matter, either by way of construction of clause 18, or as a necessary implication of it, we find no difficulty in assuming in favour of the appellant that the Raja was vested with the power to fix stipends for his children and their descendants and for his wives during his life time also.
A question, however, arises was this power completely unfettered, unguided and not controlled by the general principles of Mohamedan law ? Apart from the fact that in clause 27 of the waqf deed it is specifically mentioned that any condition or phrase laid down in any of the paras of the waqf deed was not meant to go against the, Mohamedan law and was not to be of any effect, if it did so, it is difficult to conclude that the Raja was conferred an absolute power or discretion to fix any stipend for any beneficiary and no stipend for some beneficiary.
Equality amongst all is a golden thread which runs throughout the Mohamedan law.
It is a chief trait of that law.
We have already pointed out from Tyabji 's book that each beneficiary was entitled to share the usufruct of the waqf property per capita.
The Power given to the Raja under clause 18 had to be reasonably exercised within a reasonable limit of variation according to the exigencies and special needs of a particular beneficiary.
He had no power to spend money quite disproportionately for the benefit of one 901 beneficiary may she be his young wife or young daughter or be he a young son.
He had no power to spend money for acquisition of any immovable property for a beneficiary.
No income from the waqf estate could be, spent for acquisition of an immovable property, and particularly a big property with which we are concerned in this case, to benefit only one beneficiary ignoring the others who were about a dozen.
The money had to be spent equitably for the support and maintenance of each and every beneficiary.
Of course, the Raja had the discretion to spend more money say on the education of a particular beneficiary it was necessary to do so or for the treatment of an ailing one.
There it would be preposterous to suggest that money bad to be equally spent.
It is, however, difficult to spell out from Clause 18, as was argued by Mr. Phadke, that the Raja should be deemed to have fixed as stipends for the young lady all the numerous sums of money spent from time to time in the various items of the acquisition of land or the construction of the Kothi.
Such a construction will, not only militate against the tenets of the Mahomedan law as quoted from Ameer Ali 's book, but would be obviously against the spirit of clause 24 of the waqf deed itself.
The said clause says "If any property will be purchased out of the funds of the State, it shall also be deemed to be property included in and belonging to the waqf.
It shall not become the private or personal property of any one.
" Taking a permanent lease of the land and constructing a Kothi thereupon to all intents and purposes, is a purchase of the property out of the funds of the estate.
It will be a startling proposition of Mahomedan law to cull out from clause 1 8 of the waqf deed that a property acquired obviously and clearly out of the funds of the waqf estate in the name of one of the beneficiaries should be treated as having been acquired for him or her in exercise of the power under clause 18.
It should be remembered that apart from the properties which were mentioned in the waqf deed and which had been tied and made inalienable if any further property was to be acquired, in the, eye of law, according to the concept of Mahomedan law, there was no legal entity available in whose name the property could be acquired except the Mutawalli or the beneficiary.
Unlike Hindu law, no property could be acquired in the name of the God.
Nor could it be acquired in the name of any religious institution like the waqf estate.
Necessarily the property had to be taken in the name of one of the living persons.
Ordinarily and generally the acquisition of property out of the waqf funds should have been made in the name of the Mutawalli.
But it did not cease to be, a waqf property merely because it was acquired in the name of one of the beneficiaries.
We are empbasizing this aspect of the matter at this stage to point out that the law relating to benami transactions, strictly speaking, cannot be applied in all its aspects to a transaction of the kind we are concerned with in this case.
We, however, hasten to add that even if applied, there will be no escape from the position that the real owner of the property was the Raja in his capacity as Mutawalli and the plaintiff was 902 a mere benamidar.
The property in reality, therefore, belong to the waqf estate as concurrently and rightly held by the two courts be low.
It is a very novel and ingenuous stand which was taken in this Court to say that all money spent from time to time in acquiring the land and constructing the Kothi was payment by the Raja as Mutawalli to his wife and therefore the property must be held to have been acquired by the lady herself out of her own personal fund.
At no stage of this litigation except in this Court such a case was made out in pleading or evidence or in argument.
The defendant was never asked to meet such a case.
Parties went to trial and evidence was adduced upon the footing that the plaintiff claimed that out of the money given to her by the Raja as pin money or on the occasions of festivals or otherwise she had saved a lot and out of those savings she had spent the money in acquiring the property.
The defendant asserted and proved that the case of the plaintiff was untrue and that all the money came from the waqf fund directly to meet the cost of the ac quisition of the property.
In such a situation it is difficult to accept the argument put forward by Mr. Phadke that pleadings 'should not be construed too strictly.
He relied upon three authorities of this Court in support of this argument namely, (1) Srinivas Ram Kumar vs Mahabir Prasad and others(1); (2) Nagubai Ammal & others vs B. Shama Rao & others(2), and (3) Kunju Kesavan vs M. M. Philip I.C.S. and others(3).
Let us see whether any of them helps the appellant in advancing her case any further.
In the case of Srinivas Ram Kumar (supra) the suit for specific performance of the contract failed.
The defendant had admitted the receipt of Rs. 30,000/ .
In that event, it was held that a decree could be passed in favour of the plaintiff for the recovery of Rs. 30,000/ and interest remaining due under the agreement of loan pleaded by the defendant, even though the plaintiff had not set up such a case and it was even inconsistent with the allegations in the plaint.
The Trial Court had passed a decree for the sum of Rs. 30,000/ .
The High Court upturned it.
In that connection, while delivering the judgment of the Court, it was observed by Mukherjea J., as he then was, at page 282 : "The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the Court to give him relief on that basis.
The rule undoubtedly is that the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meat.
But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant him self makes." (1) ; (2) ; (3) [1964]3 S.C.R. 634. 903 In the instant case, there is no question of giving any alternative relief to the plaintiff.
The relief asked for is one and the same.
The plaintiff claimed that she had acquired the property with her personal funds.
The defendant successfully combated this case.
He had not said anything on the basis of which any alternative relief could be given to the plaintiff.
The facts of the case of Nagubai Ammal (supra) would clearly show that the decision of this Court does not help the appellant at all.
The respondent did not specifically raise the question of his pending in his pleading nor was an issue framed or.
the point, but he raised the question at the very commencement of the trial in his deposition, proved relevant documents which were admitted into evidence without any objection from the appellants who filed their own documents, cross examined the respondent and invited the Court to hold that the suit for maintenance and a charge and the connected proceedings evidenced by these documents were collusive in order to avoid the operation of section 52 of the Transfer of Property Act.
The matter was decided with reference to section 52.
In such a situation it was held by this Court that the decisions of the Courts below were correct and in the facts and circumstances of thecase the omission of the respondent to specifically raise the questionof his pending in his pleading did not take the appellants by surprise.
It was a mere irregularity which resulted in no prejudice to the appellants.
In the instant case no body at any stage of the litigation before the appeal came up to this Court had taken any stand or said a word any where that money spent in acquisition of the property was the personal money of the plaintiff because as and when the sums were spent they went on becoming her personal money.
The evidence adduced and the stand taken in arguments were wholly different.
No party had said anything on the lines of the case made out in this Court.
Similar is the position in regard to the decision of this Court in the case of Kunju Kesavan.
At page 648 Hidayatullah J., as he then was,has stated, "The. parties went to trial fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagavathi Valli or not.
The absence of an issue, therefore, did not lead to a mis trial sufficient to vitiate the decision.
" It was further added that the plea was hardly necessary in view of the plea made by the plaintiff in the replication.
Mr. Lal Narayan Sinha placed reliance upon the decision of this Court in Meenakshi Mills, Madurai vs The Commissioner of Income tax, Madras(1) in support of his submission that the question of benami is essentially a question of fact and this Court would not ordinarily and generally review the concurrent findings of the courts below in that regard.
Mr. Phadke submitted that his case was covered by some exceptionscarved out in the decision of the Federal Court in Gangadara Ayyarand others vs Subramania Sastrjgal and others.(2) (1) ; (2) A.T.R. 904 In our opinion it is not necessary to decide as to on which side of the dividing line this case falls in the light of the principles enunciated, in the case aforementioned.
Truly speaking, the concurrent findings of the Courts below on the, primary facts could not be seriously challenged.
They are obviously correct.
But a new stand was taken on ' the basis of clause 18 of the waqf deed which we have already discussed and rejected.
Mr. Phadke, heavily relied upon clause 19 of the Win dated 17 6 1938 Ext.
15 executed by the Raja fixing various amounts of stipends to be paid to the beneficiaries after his death.
He had executed two other wills prior to this Will.
In an earlier litigation, a question had arisen as to which Will would prevail the first one or the last one.
The amounts fixed for the plaintiff in the last Will was much higher than the amount fixed for her in the first Will.
in an earlier judgment dated 3 9 1949 Ext.
3 which was a judgment inter partes it was held that the amount fixed in the first Will would prevail.
Clause 18 of the waqf deed was also interpreted in a particular manner.
Mr. Lal Narayan Sinha endeavoured to use this judgment operating as res judicata in regard to some of the questions falling for decision in this litigation.
We do not propose to make use of that judgment in that form.
Nor do we propose to express any final opinion as to which amount of stipend was effective the first one or the last one.
shall assume in favour of the plaintiff that the. amount fixed by the last Will was effective and binding on the subsequent Mutawalli.
We are, however, concerned to read clause 19 of the last Will which runs as follows "My wife Siddique Fatima has got a kothi known as (main (?) Shagird Pasha in mauza Doodhpur (paper torn) by taking on perpetual lease.
I or the state has no concern with the same.
It has been 'constructed by her with her own funds.
All the articles lying there belong to her and have been purchased by her from her own money.
I have certainly given some articles to her which belonged to me personally.
In short all the articles, of whatever sort they may be are her property and nobody has got any right in respect thereof because the state or any one else has got no concern or right in respect thereof.
Hence she(?) has got the right to dispose the same off or to make a waqf of the same.
She may give it to any of my sons, who renders obedience and service to her or may give the same to any of my grandsons.
My other heirs shall have no right in respect thereof.
If any body brings, any claim, in order to harass her, the same shall be false.
" Let us see whether this clause advances the case of the appellant any further.
On a close scrutiny, it would be found that it directly demolishes her stand taken in this Court.
The recital by the Raja in clause 19 is that his wife bad taken the perpetual lease and constructed the kothi with her own funds.
All the articles lying there have been purchased by her from her own money.
He had certainly given some articles to her which belonged to him personally.
There is 905 no recital that the Raja had constructed the kothi ',for the plaintiff out of his own funds nor was there a recital that he had constructed the kothi by taking the money from the waqf estate and treating it as payment of stipends to her as and when the sums of money were paid.
By no stretch of law such a recital could create a title in favour of the plaintiff and finish the right of the, waqf to the property.
The recital was demonstrably false and could not bind the subsequent Mutawalli.
If the property became the acquired property of the waqf a Mutawalli,as the Raja was, by his mere declaration contained in clause 19 ofthe Will could not make it a property of the lady.
The recital of fact could be pressed into service only to lend additional support to the plaintiff 's case if she would have stuck to that case and proved it by evidence aliunde.
The appellant 's counsel relied upon the various circumstances to, advance her case in this Court the foremost of them is based upon clause 18 of the waqf deed, which we have already dealt with.
It was next contended that the real question was that the property was of waqf alal aulad of which the main object was the maintenance and support of the members of the settler 's family and to tie up the corpus of the property in perpetuity so as to, make it inalienable.
The Raja, however, according to the submission was left free duringhis life time to make disbursement of the income in any manner he chose and liked.
Acquiring a property with the waqf fund was the fulfillment of the object of the wakf.
It was a part of making a provision for the maintenance and support of the wife of the Mutawallii.
It was an integral part of the object of the waqf and was not in breach of the trust.
We are not impressed with this argument and have already dealt with it in the earlier portion of this judgment.
True it is that the property was not acquired by the sale of the corpus of any of the waqf property but even acquisition of an immovable property directly with the, waqf fund was an accretion to the waqf property.
The Raja had no power while administering the waqf to acquire a property for a particular beneficiary by way of maintenance and support of such a beneficiary.
As indicated earlier, a Mutawalli of a waqt although not a trustee in the true sense of the terms is still bound by the various obligations of a trustee.
He like a trustee or a person standing in a fiduciary capacity, cannot advance his own interests or the interests of his close relations by virtue of the position held by him.
The use of the funds of the waqf for acquisition of a property by a Mutawalli in the name of his wife 'would amount to a breach of trust and the property so acquired would be treated as waqf property.
In the tenth edition of The Law of Trusts by Keaton and Sheridan it has been pointed out at page 329, Chapter XX "The general rule that a trustee must not take.
heed of one beneficiary to the detriment of others has already been discussed.
Put in another way, the rule implies that although a trustee, may be the servant of all the beneficiaries, he is not the servant of any one of them, but an arbitrator, who must hold the scales evenly.
" The position of the Mutawalli under the.
Mahomedan law is in no way different and all the beneficiaries are entitled to benefit equally, 7 329 SCI/78 906 of course, subject to the special power conferred on the Mutawalli as the one provided in clause 18 of the waqf deed and to the extent and in the manner interpreted by us above.
Exhibit A 22 an account of daily expenses incurred in the construction of the Kothi was attacked as a spurious document.
we do not attach much importance to Ext.
A 22 in face of the other pieces of evidence to indicate that the expenses were all met from the waqf fund.
It is not necessary to lay any stress on Ext.
A 22 Our attention was drawn to some statements made in the testimony of the defendant himself who was examined as D.W. 2 and D.W. 1the brother of the Raja.
It may be mentioned here that Hamid Hasan brother of the defendant was examined at P.W.3.
The plaintiff had examined herself in the house in which P.W. 3 was living and in his presence.
Without discussing in any detail a few lines here for a few lines there in their evidence, suffice it to say that their evidence could not and did not establish the plaintiffs case as made out in the Courts below nor did they lend any support to the new case made out here.
We, therefore, do not think it necessary to encumber this judgment by a detailed discussion of the evidence, because it has all been dealt with in full by the Trial Court and to a large extent by the High Court also.
We now proceed to consider, the law of benami prevalent in India and especially in regard to acquisition of a property by the husband in the name of the wife.
We would also in this connection be discussing whether the, doctrine of advancement is applicable in India or any principle analogous to that can be pressed into service on behalf of the appellant as was sought to be done by her learned counsel.
Alongwith the discussion of the points aforesaid, we shall be adverting to the appellant 's argument of burden of proof being on the person to prove that a transaction which is apparent on the face of the document of title is not a real one but a benami deal.
In conclusion, we shall show that neither the Trial Court nor the High Court has deviated from the application of the well settled principles in this regard, although at places the Trial Court seems to have apparently thrown the onus on the plaintiff.
But as a matter of fact neither of the two Courts below has committed any error in the application (,it the real principle.
In Gopeekrist Gosain and Gungaparsaud Gosain(1) it was pointed out as early as 1854, at page 72 : "It is very much the habit in India to make purchases in the names of others, and, from whatever cause or causes the practice may have arisen, it has existed for a series of years, and these transactions are known as "Benamee transactions." Lord Justice Knight Bruce proceeds to observe further at Pages 7475 that if the money for acquisition of property has been provided by a person other than the individual in whose name the purchase was effected and if such a person was a stranger or a distant relative of the person providing the money,, "he would have.
been prima (1)6 Moore 's Indian Appeals, 53. 907 facia a trustee".
It was observed further that even when the purchaser was the son of the real purchaser the English doctrine of advancement was not applicable in India.
This case was followed by the Board in Bilas Kunwar and Desraj Ranjit Singh and others(1) Sir George Farwell has said at page 205 : "The exception in our law by way of advancement in favour of wife or child does not apply in India : Gopeekrist vs Gangaparsaud; (1854) 6 Moo, Ind. Ap.
53 but the relationship is a circumstance which is taken into consideration in India in determining whether the transaction is benami or not.
The general rule in India in the absence of all other relevant circumstances is thus stated by Lord Campbell in Dhurm Das Pandey vs Mussumat Shama Soondari Dibiah (1843) 3 Moo.
Ind. Ap. 229; "The criterion in these cases in India is to consider from what source the money comes with which the purchase money is paid." Lord Atkinson reiterated the same view in Kerwick and Kerwick (2) at page 278 in these terms : "In such a case there is, under the general law in India, no presumption of an intended advancement as there is in England.
" It will be useful to quote a few lines from the judgment of the Judicial Committee of the Privy Council delivered by Sir John Edge in the case of Sura Lakshmiah Chetty and others vs Kothandarama Pillai ( 3 ) The lines occurring at page 289 run thus : "There can be no doubt now that a purchase in India by a native of India of property in India in the name of his wife unexplained by other proved or admitted facts is to be regarded as a benami transaction, by which the beneficial interest in the property is in the husband, although the ostensible title is in the wife.
The rule of the law of England that such a purchase by a husband in England is to be assumed to be a purchase for the advance ment of the wife does not apply in India.
" In the well known treatise of the law of Trusts referred to above the learned authors say at page 173 : "The best example of a trust implied by law is where property is purchased by A in the name of B; that is to say, A supplies the purchase money, and B takes the conveyance.
Here, in the absence of any explanatory facts, such as an intention to give the property to B, equity presumes that A intended B to hold the property in trust for him.
" It may here be made clear that much could be said in favour of the appellant if the Raja would have acquired the property with his own money intending to acquire it for her.
But such an intention was of (1) 42 Indian Appeals, 202.
(2) 47 Indian Appeals, 275.
(3) 52 Indian Appeals, 286.
908 no avail to the appellant when the money for the acquisition of the property came from the coffers of the waqf estate over which the Raja had no unbridled or uncontrolled power of ownership.
He was himself in the position of a trustee owing a duty and obligations to the beneficiaries.
He had no free volition in the matter to spend and invest the trust fund in any manner he liked and for showing undue advantage to his wife.
At one stage of the argument Mr. Phadke felt persuaded to place reliance upon the decision of Yorke and Agarwal JJ in Mt. Sardar Jahan and others vs Mt. Afzal Begam(1).
At page 291, column 1 the observation seems to have been made per in curium to the effect: "As regards this question of pleading, it does not appear to us that there was anything to prevent the plaintiff from falling back on the plea of advancement in case she was unable to satisfy the court that the moneys expended were her own." Yorke J realised the inaccuracy of the above proposition and said so in Mt. Siddique Begam vs Abdul Jabber Khan and others(2) and then concluded at page 312 column 1 thus : "In point of fact it has been laid down by their Lordships in earlier cases that the burden of proof that a transfer is benami does lie in the first instance upon the person asserting it to be so, but that burden is discharged upon the said person showing that the purchase money was provided by him.
" In the case of Gangadara Ayyar and others (supra) Mahajan J., enunciated the law pithily, if we may say so with respect, in paragraph 14 at page 92 : "It is settled law that the onus of establishing that a transaction is benami is on the plaintiff and it must be strictly made out.
The decision of the Court cannot rest on mere suspicion, but must rest on legal grounds and legal testimony.
In the absence of evidence, the apparent title must prevail.
It is also well established that in a case ' where it is asserted that an assignment in the name of one person is in reality for the benefit of another, the real test is the source whence the consideration came and that when it is not possible to obtain evidence which conclusively establishes or rebuts the allegation, the case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts.
" While dealing with the question of burden of proof, one must remember a very salutary principle reiterated by this Court in Kalwa Davadattam and two others vs The Union of India and other(3) at page 205.
Says the learned Judge: (1) A.I.R. 1941, oudh, 288.
(2) A.I.R. 1942, Allahabad, 308.
(3) ; 909 The question of onus probandi is certainly important in the early stages of a case.
It may also assume importance where no evidence at all is led on the question in dispute by either side; in such a contingency the party on whom the onus lies to prove a certain fact must fail.
Where however evidence has been led by the contesting parties on the question in issue, abstract considerations of onus are out of place; truth or otherwise of the case must always be adjudged on the evidence led by the parties." Shinghal J. recently followed this dictum in the case of Union of India vs Moksh Builders and Financiers Ltd. and ors.
etc.(1) at page 973.
Mr. Phadke heavily relied upon the decisions of this Court in (1) Kanakarathanammual vs V. section Loganatha Mudaliar and another(2) (2) Jaydayal Poddar (deceased) through his L. Rs and another vs Mst.
Bibi Hazra and ors(3) and (3) Krishnanand vs The State of Madhya Pradesh (4).
A question of some fine distinction arose in Kanakarathanammal 's case.
The question was whether the property purchased in the name of the wife by the money given to her by the husband was a property gifted to her under section 10(2) (b) of the Mysore Hindu Law women 's Rights Act, 1933 or was it a property in which fell under clause (d) of section 10(2).
If it was a property gifted by the husband to the wife, then the appellant 's contention was right and it became a property gifted under section 10(2) (b).
If, on the other hand, it was a property purchased with the money gifted by the husband to the wife, then it would not be so.
According tothe finding of the Courts below, the whole of the consideration waspaid by the appellant 's father and not by her mother.
The majorityview expressed by Gajendragadkar J., as he then was, at page 9 of the report is : "We have carefully considered the arguments thus presented to us by the respective parties and we are satisfied that it would be straining the language of section (2)(b) to hold that the property purchased in the name of the wife with the money gifted to her by her husband should be taken to amount to a property gifted under section 10(2) (b).
" It would thusbe seen that indisputably in that case the property was of the wife.
The only dispute was whether the property itself was acquired as agift from her husband or it was acquired with the money gifted to her by the husband.
In our opinion, therefore, this case is of no help, to the appellant in this appeal.
In Jaydayal Poddar 's case (supra) one of us (Sarkaria J.) while delivering the judgment on behalf of the Court was dealing with a case where the question was whether the property purchased by Abdul Karim in the name of his wife Mst.
Hakimunnissa was a benami purchase in the name of the latter.
The Trial Court held that she was benamidar.
The High (1) ; (2) ; (3) (4) [1977]1 S.C.R. 816.
910 Court reversed the decision and held that the plaintiffs had failed to show that Mst.
Hakimunnissa in whose name the sale deed stood, was only a benamidar and not the real purchaser.
While affirming the view of the High Court, it was aptly said at pages 91 92 : "It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so.
This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of Benami or establish circumstances unerringly and reasonably raising an inference of that fact.
The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through.
But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof.
The reason is that a deed is a solemn document prepared and executed after considerable deliberation and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his ' favour that the apparent estate of affairs is the real state of affairs.
Though the question, whether a particular sale is Benami ornot, is largely one of fact, and for determining this question,no absolute formulae or acid tests, uniformally applicable inall situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicate, the courts are usually guided by these circumstances : (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale.
The above indicate are not exhaustive and their efficacy varies according to the facts of each case.
Nevertheless No. 1, viz. the source whence the purchase, money came, is by far the most important test for determining whether the sale standing in the name of one person is in reality for the benefit of another." Apart from the fact that in the present appeal we are not concerned with a simple case of purchase of the property by the husband in the name of the wife with his own money, the purchase being with the waqf money, even applying the principles extracted above it would be noticed that the concurrent findings of the courts below that the appellant was benamidar on behalf of the waqf does not suffer from any infirmity to justify our interference with the said finding. ] 'lie burden has been strictly discharged by the respondent so much 911 so that the finding as recorded could not be assailed.
It was merely attempted to be availed of to support a new case in this Court.
It should be remembered that 'by far the most important test for determining whether the sale standing in the name of one person is in reality for the benefit of another ' namely the source whence the purchase money came has been established beyond doubt.
The nature and possession of the property after the acquisition was such that it did not lead to the conclusion that it was not a waqf property and was a property in exclusive possession of the appellant through her tenants including tile respondent.
The motive to, acquire the property in the name of the wife is clearly spoken of by D.W.I.brother of the Raja when he said at page 37 of the paper book "Raja Sahib was also present at the time of the execution of the lease.
At that time there was no debt against him.
On being asked by me he said that the plaintiff used to, trouble him and that in order to please her he was getting a fictitious lease executed in her favour.
" It was argued for the appellant that the Raja wanted to make a provision for his young wife to protect her interests from being trampled with by her sons and daughters.
This is not correct.
Although the defendant was not pulling on well with the Raja after he had married the plaintiff, according to her own case pleaded 'in the plaint she was pulling on well with the defendant upto the year 1950 and the relations between them got strained when her daughter was married to Saiyed Mohammed Raja Ali Khan.
The position of the parties, namely, the Raja and the plaintiff, was such that one could be inclined to believe that in all probability the Raja could provide funds for acquisition of the property not only in the name of his wife but for her and her alone provided the funds expended were his personal funds.
But no such inference is possible on the unmistakable position of thiscase that the funds came from the coffer of the waqf estate.
The custody of the title deed and other papers, except a few, were not with the plaintiff.
But on the facts of this case one, cannot attach much importance to this circumstance either way.
The conduct of the parties concerned in dealing with the property after acquisition also goes in favour the defendant and against the plaintiff.
It could not be shown that the plaintiff bad realised rent from the other tenants who had been there in the Kothi before 1947.
Nor was there anything to show that the defendant himself was inducted as a tenant in the Kothi by the plaintiff.
We, therefore, hold that even on the application of the salutary principles of law enunciated in Jaydyal Poddar 's case the appellant cannot succeed.
This case was merely followed in Krishnanand 's case by Bhagwati J.
We may again emphasize that in a case of this nature, all the aspects of the benami law including the question of burden of proof cannot justifiably be applied fully.
Once it is found, as it has been consistently found, that the property was acquired with the money of with the money of the waqf, a presumption would arise that the property is a waqf property irrespective of the fact as to in whose name it was acquired.
The Mutawalli by transgressing the limits of his power and showing undue favour to one of the beneficiaries in disregard to a large 912 number of other beneficiaries could not be and should not be permitted to gain advantage by this method for one beneficiary which in substance would be gaining advantage for himself.
In such a situation it will not be unreasonable to say rather it would be quite legitimate to infer, that it was for the plaintiff to establish that the property acquired was her personal property and not the property of the waqf Is it possible to decree her appeal in face of her three varying stands in the three courts ? They are (1) in the Trial Court case of acquisition of property with her personal money; (2) in the High Court acquisition of property with the personal money of her husband and (3) in this Court the waqf fund invested from time to time became her personal money and enabled her to acquire the property.
For the reasons stated above, we dismiss the appeal, but with this direction that the parties will bear their own costs throughout.
Before we part with this case, we would like to put on record that a suggestion was thrown from the Court to the parties to arrive, at some kind of lawful settlement which may not go against the terms of the waqf deed or the Mahomedan law in relation to waqf.
Pursuant to the said suggestion, an offer was made on behalf of the substituted respondents to pay a sum of Rs. 30,000/ to the, appellant within a period of one year.
This was on the footing, as suggested by the Court, as if the lease hold in the land upon which the Kothi stands was the property of the appellant, but the Kothi was of the waqf.
Unfortunately this offer was not accepted by the appellant.
Still we hope and trust that the respondent will honour their unilateral offer and pay the sum of Rs. 30,000/ to the appellant within a period of one year from today, preferably in 4 three monthly equal instalments of Rs. 7,500/ each.
The amount so paid would be over and above the duty and the obligation which is there under the waqf on the present Mutawalli out of the substituted respondents.
We have tried to take a compassionate view for the appellant to the, extent to which we thought we could justifiably go.
We have relieved her of costs in all the three Courts.
We believe that the respondents will not belie our hopes merely because an executable decree in respect of the sum of Rs. 30,000/ in absence of them acceptance of the offer by the appellant cannot be passed.
S.R. Appeal dismissed.
[/INST]One Smt.
Sughra Begum, a Shia Muslim lady was possessed of vast Zamindari and other properties.
On October 6, 1928, she created a waqf of the entire properties dividing them in three qurras, Raja Haji Saiyed Mohammad Mahmood Hasan was appointed by the waqifa as the Mutawalli of qurra No. 1.
After the death of his first wife Smt.
Akbari Begum.
the Raja took the plaintiff appellant as his second wife in the year 1933.
On January 22, 1935, a permanent lease was executed on behalf of one Saiyad Anwarul Rahman in respect of the disputed land in the name of the plaintiff.
The rent fixed was Rs. 80/per year.
Between the years 1937 and 1939 a bungalow was constructed on the said land which was named as "Mahmood Manzil".
The Raja died in September, 1939.
The plaintiff appellant filed a suit No. 86 of 1952 in the Court of the Civil Judge, Aligarh in which the original respondent was the sole defendant.
The plaintiffs case was that the disputed property belonged to her and that the defendant was inducted as a tenant of the 'kothi ' on and from 1 3 1947 on a rental of Rs. 60/ p.m., that he paid rent upto May 1950, but did not pay any rent thereafter, that she served a notice on him to pay the arrears of rent and deliver vacant possession of the Kothi.
The defendant respondent pleaded inter alia that Raja Sahib, the first Mutawali of qurra No. 1 had acquired the lease of the land and constructed the Kothi with the waqf fund as Mutawalli of the waqf and therefore it was a waqf property, that after the death of the Raja, he became the Mutawalli of qurra No. 1 including the Kothi in question and that he occupied the Kothi as a Mutawalli and not as a tenant.
The Trial Court accepted the case of the defendant, rejected that of the plaintiff and dismissed her suit.
Her appeal before the High Court was dismissed.
Dismissing the appeal by special leave, the Court HELD : 1.
According to Shia law, the waqf is irrevocable after possession is given to the beneficiaries or the Mutawalli.
The settler divests himself of the ownership of the property and of everything in the nature of usufruct from, the moment the waqf is created.
In pure metaphorical sense, the expression "ownership of God" is used but unlike Hindu law, since conception of a personal God is not recognised there is no ownership of God or no property belongs to God in the jural sense, although "the ownership of the property becomes reverted in God as he is originally the owner of all things".
The property is considered as transferred to the beneficiaries or the Mutawalli for the object of the waqf.
Strictly speaking, the ownership of the waqf property has no jural conception with any exactitude.
The corpus is tied down and is made inalienable.
Only the usufract and the income from the corpus or the waqf property is available for carrying out the objects of the waqf.
Creation of waqf for the purpose of maintenance of the waqif 's family and their descendants is also a charitable purpose.
[894 G 14, 895 A B] 2.
A Mutawalli is like a manager rather than a trustee.
The Mutawalli, so far as the waqf property is concerned, has to see that the beneficiaries got the advantage of usufruct.
The Mutawalli may do all acts reasonable and proper for the protection of the waqf property, and for the administration of the waqf.
[895 E, 896 D] 887 2(a) A Mutawalli of a waqf although not a trustee in the true sense of the term is still bound by the various obligations of a trustee.
He like a trustee or a person standing in a fiduciary capacity cannot advance his own interests or the interests of one class of relations by virtue of the position held by him.
The use of the funds of the waqf for acquisition of a property by a Mutawalli in the name of his wife would amount to a breach of trust and the property so acquired would be treated as waqf property.
[905 E G] Moattar Raza and Ors.
vs Joint Director of Consolidation U.P., Camp at Bareilly and Ors., A.1,R. 1970 All.
509 explained.
Mohammad Qamer Shah Khan vs Mahammed Salamat Ali Khan A.I.R. 1933, All. 407 over ruled.
The law as regards distribution of distributable income of the waqf property amongst the beneficiaries is that the benefit of a waqf for a person 's "sons and his children, and the children of his children for ever so long as there are descendants, is taken per capita, males and females taking equally and the children of daughters being included." [896 C F] Ahmed G. H. Ariff and Ors.
vs Commissioner of Wealth Tax, Calcutta, ; ; explained and held inapplicable.
In the eye of law, according to the concept of Mohammedan law, there was no legal entity available in whose name the property could be acquired except the Mutawalli or the beneficiary.
Unlike Hindu law, no property could be acquired in the name of God.
Nor could it be acquired in the name of any religious institution like the waqf estate.
Necessarily the property bad to be taken in the name of one of the living persons.
Ordinarily and generally the acquisition of property out of the waqf funds should have been in the name of the Mutawalli.
But it did not cease to be a waqf property merely because it was acquired in the name of one of the beneficiaries.
[901 E G] 5.
(a) The burden of proof that a particular sale is benami and the apparent purchaser is not the real owner always rests on the person asserting it to be so.
This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact.
[910 A B] (b) The law relating to benami transactions strictly speaking, cannot, be applied in all its aspects to a transaction of such a kind.
Even if applied there will be no escape from the position that the real owner of the property was the Raja in the instant case in his capacity as Mutawalli and the appellant was a mere benamidar.
The property in reality, therefore belong to the waqf estate as concurrently and rightly field by the two Courts below.
[901 G H, 902 A] Gopeekrist Gosain and Gangaparsaud Gosain, 6 Moore 's Indian Appeals, 53.
Bilas Kunwar and Desraj Ranjit Singh and Ors., 42 Indian Appeals, 202, Kerwick and Kerwick, 47 Indian Appeals, 275, Sura Lakshmiah Chetty and Ors.
vs Kothandarama Pillai 52 Indian Appeals, 286 Mt. Sardar Jahan and Ors.
vs Mt. Afzal Begam, A.I.R. 1941, Oudh, 288, Mt. Siddique Begam vs Abdul Jabbar Khan and Ors.
, A.I.R. 1942, Allahabad, 308, Kalwa Devadattam and two Ors.
vs The Union of India and Ors, ; Union of India vs Moksh Builders and Financiers Ltd. and Ors., ; Kana karathanammal vs V. section Loganatha Mudaliar and Anr.
; , Jaydayal Poddar (deceased) through 1. rs.
and Anr.
vs Mst.
Bibi Hazra and Ors., and Krishnanand vs The State of Madhya Pradesh, [1977] 1 S.C.C. 816 referred to.
In the instant case (a) It is not possible to decree the appeal in face of her three varying stands in the three Courts viz. (1) in the Trial Court case of acquisition of property with her personal money; (2) in the High Court acquisition of property with the personal money of her husband and (3) in this Court the waqf fund invested from time to time became her personal money and enabled her to acquire the property.
[912 B C] 888 (b) A valid waqf was created by Smt.
Sughra Begum.
Except a Portion of money which was to be spent for public, religious or charitable objects the waqf was primarily of a private nature for the benefit of the settler 's family and their descendants, which is called waqf alal aulad.
The ultimate object was to spend income, if any, in the service of the Almighty God.
[894 C] Abdul Fata Mohammad vs Rasamaya, 22 Indian Appeals 76 referred to.
(c) The evidence is overwhelming on the question as to what was the source of money for the acquisition of the disputed property, either the land and Kothi.
It came from the waqf fund.
[897 C] (d) Though the Raja was vested with the power to fix stipends for his children and their descendants and for his wives during his life time also, he was not conferred an absolute power or discretion to fix any stipend for any beneficiary and no stipend for some beneficiary.
Equality amongst all is a golden thread which runs throughout the Mohammadan law.
It is a chief trait of that law.
[900 G] (e) Clause 19 of the last will of the Raja cannot create a title in favour of the plaintiff and finish the right of the waqf to the property.
If the property became the acquired property of the waqf, a Mutawalli; as the Raja was, by his own declaration contained in clause 19 of the Will could not make it a property of the plaintiff appellant.
The recital of fact could be pressed into service only to lend additional support to the plaintiff 's case if she would have stuck to that case and proved it by evidence aliunde.
[905 A B] (f) The concurrent findings of the Courts below that the appellant was benamidar on behalf of the waqf does not suffer from any infirmity to justify this court 's interference with the said finding.
The burden has been discharged by the respondent so much so that the finding as recorded could not be assailed.
It was merely attempted to be availed of to support a new case in this Court.
It should be remembered that 'by far the most important test for determining whether the sale standing in the name of one person is in reality for the benefit of another ' namely the source whence the purchase money came has been established beyond doubt.
The nature and possession of the property after the acquisition was such that it did not lead to the conclusion that it was not a waqf property and was a property in exclusive possession of the appellant through her tenants including the respondent.
[910 H, 911 A B] (g) In a case of this nature, all the aspects of the benami law including the question of burden of proof cannot justifiably be applied fully.
Once it is found, as it has been consistently found, that the property was acquired with the money of the waqf, a presumption would arise that the property is a waqf property irrespective of the fact as to in whose name it was acquired.
The Mutawalli by transgressing the limits of his power and showing undue favour to one of the beneficiaries in disregard to a large number of other beneficiaries could not be and should not be permitted to gain advantage by this method for one beneficiary which in substance would be gaining advantage for himself.
In such a situation it will not be unreasonable to say rather it would be quite legitimate to infer, that it was for the plaintiff to establish that the property acquired was her personal property and not the property of the waqf.
[911 G H, 912 A B]
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<s>[INST] Summarize the judgementivil Appeal No. 11 89 of 1982.
From the Judgment and order dated the 18th December, 1981 of the Gauhati High Court in Election Petition No. 1 of 1980.
S Rangarajan, S.K. Nandy and section Parikh for the Appellant.
A.K Nag for the Respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
In this election appeal the only point for determination is whether at the time when respondent No. I filed his nomination paper he held a subsisting contract with the Government for widening the PLP road.
While it is true that there was such a contract in existence prior to 30:11.1979, respondent No. 1 wrote a 864 letter on 30.11.1979 to the concerned Executive Engineer stating that he was closing the said contract.
The last date for filing nomination was 10.12.1979.
It is argued that the contents of the said letter does not have the effect of putting an end to the contract.
After going through the contents of the letter it is absolutely clear that the contractor unilaterally put an end to the contract and informed the Department concerned accordingly and also he had resigned from the contractor 's list of PWD Manipur.
Thus after this letter the contract came to an end by breach and the contract was no longer subsisting.
Mr. Rangarajan has submitted some very nice and delicate questions for consideration.
One of them being that until and unless the letter is accepted by the Authority the contract would continue and thus the respondent would suffer from the disqualification.
In our opinion having regard to the contents of the letter it is not possible to accept the argument of Mr. Rangarajan that the contract was subsisting.
The acceptance of the letter by the authorities was unnecessary for putting an end to the contract although the breach may give rise to a cause on action for damages.
No other point is raised before us.
We do not find any merit in this appeal and it is dismissed without any order as to costs.
H.L. C. Appeal dismissed.
[/INST]The respondent landlords had let out a shop to a tenant who had, with the consent of the landlords, sub let the same to the appellant.
The landlords moved an application under section 21 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 against the tenant and the sub tenant for release of the premises on the ground of bonafide requirement.
The prescribed authority allowed the application against the appellant and dismissed against the tenant.
In appeal the District judge confirmed the order of the prescribed authority.
In a writ petition the appellant challenged the order of the District Judge.
The High Court dismissed the writ petition observing that the fourth proviso to s.21 contemplated the consideration of the likely hardship of the tenant or the landlord only and not of the sub tenant.
Hence this appeal.
Allowing the appeal, ^ HELD: All that the relevant proviso to s.21 requires is that the comparative hardship of the tenant as also that of the landlord shall be taken into account before passing any order of release or refusal to release.
If the sub tenancy had been created without the consent of the landlord the position might have been different.
The sub tenant for the purposes of the fourth proviso to s.21 would virtually be a tenant inasmuch as rent is payable by him to the tenant in chief, who to all intents and purposes will be a landlord qua the sub tenant: To interpret the section in the way as the High Court has interpreted would be defeating the very salutary purpose of the Act.
[33 H; 34 A B] Bhullan Singh vs Babu Ram referred to.
In the instant case, the appellant was entitled to the protection of the fourth proviso to section 21 and the comparative hardship of the appellant as well as that of the landlords should have been taken into account before disposing of an application under s.21 of the Act.
The Courts below have failed to exercise jurisdiction vested in them in not considering the likely hardship of the appellant.
[34 C D]
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<s>[INST] Summarize the judgementN: Criminal Appeal No. 172 of 1971.
Appeal by Special Leave from the Judgment and Order dated the 7 5 70 of the Calcutta High Court in Criminal Revision No. 370 of 1970.
M. M. Kshatriaya and G. section Chatterjee for the Appellant.
A. K. Sen, Mrs. Leila Seth, Mrs. Anjana Sen and O. P. Khaitan for respondent.
The Judgment of the Court was delivered by KHANNA, J.
This appeal by special leave is by the State of West Bengal against the judgment of the Calcutta High Court whereby the High Court in a revision petition under section 439 of the Code of Criminal Procedure quashed the charges framed by the Presidency Magistrate against Raj Kumar Agarwalla respondent.
The prosecution case is that on November 8, 1967 Shankerlal representing himself to be a broker of foreign machinery parts went to Ram Avtar Prasad complainant and told him that he (Shanker Lal) could arrange for a transaction of sale of foreign goods which would result in good profit to the complainant.
The complainant agreed to the proposal and wanted to see the seller of the foreign goods in question.
On the following day Shanker Lal came with another man named Pandey and told Ram Avtar complainant that Pandey was an agent of Shri Hanuman Agency and would supply the foreign goods known as washer plates.
Pandey showed Ram Avtar the samples of those washer plates.
One of those samples was kept by Ram Avtar.
A day after that Shanker Lal brought one Saheb Jaman Khan alongwith him to Ram Avtar and introduced Saheb Jaman Khan as agent of M/s. Ashoke Trading Corporation of Indore.
Ram Avtar then agreed to purchase 200 pieces of the washer plates at the rate of Rs. 38/ per piece.
Formal order, it was then agreed, would be sent through Shanker Lal.
279 On November 15, 1967 Shanker Lal handed over the said formal order to Ram Avtar and stated that the goods would be supplied on the following day.
Ram Avtar was also told that this transaction would fetch him a profit of Rs. 3200/ .
On November 16, 1967 Ram Avtar lodged a report with the police against Shanker Lal after his suspicion had been aroused.
Later on that day Shanker Lal and Raj Kumar Agarwalla came to the shop of Ram Avtar with washer plates in a taxi.
Price of the said goods was then demanded from Ram Avtar.
Shanker Lal and Raj Kumar Agarwalla were thereupon arrested by the police.
It appears that the police did not submit any charge sheet on the basis of the report which had been lodged by Ram Avtar and the accused were discharged.
Subsequently, the proceedings were set in motion against Raj Kumar Agarwalla, Shanker Lal and Saheb Jaman Khan.
Charge under sections 420, 468 and 471 Indian Penal Code read with section 120B Indian Penal Code was framed against all the three accused.
Another charge under section 420 read with section 511 Indian Penal Code was framed against Raj Kumar Agarwalla and Shanker Lal.
Raj Kumar Agarwalla thereafter filed a revision petition in the High Court for quashing the charge against him.
The revision petition was allowed by the High Court on the ground that so far as Raj Kumar Agawalla was concerned, no case had been made out against him.
Charges framed against him were consequently quashed.
We have heard Mr. Kshatriya on behalf of the appellant State, and are of the view that there is no cogent ground for interference with the judgment of the High Court.
The report which was lodged by Ram Avtar in the very nature of things made no mention of the name of Raj Kumar Agarwalla respondent because it is the case of the prosecution itself that Raj Kumar appeared on the scene only subsequent to the lodging of the report.
The part which is attributed to Raj Kumar is that he was present along with Shanker Lal, when the latter brought washer plates in a taxi and demanded the price of the washer plates from Ram Avtar.
That circumstance, as pointed out by the High Court, would hardly warrant an inference that Raj Kumar respondent too was a party to any conspiracy to defraud or cheat Ram Avtar.
We find no infirmity in the judgment of the High Court as might induce us to interfere.
The appeal fails and is dismissed.
V.P.S. Appeal dismissed.
[/INST]The appellant Surjit Lal was the owner of an immovable property called "Kathoke Lodge".
He used to derive rent income from the said property in addition to deriving income under other heads.
In 1956, he made a declaration throwing the said property into the family hotchpotch.
The family consisted of himself his wife and an unmarried daughter.
The appellant contended before the Income Tax Officer that the rent income derived from the said property should be assessed in the status of a Hindu Undivided Family.
The Income Tax Officer held: 1.
In the absence of a nucleus of joint family property there was nothing with which the appellant could mingle his separate property.
There could not be a Hindu Undivided family without there being Undivided family property.
An appeal filed before the Appellate Assistant Commissioner was dismissed but on the following grounds: (1) After the declaration the appellant was dealing with the income of the property in the same way as before and, therefore, the declaration was not acted upon.
(2) Even assuming that the property was thrown into the common stock and was therefore joint family property, the income from that property could still be taxed in the appellant 's hands as he was the sole male member of the family.
The matter was further taken to the Income Tax Appellate Tribunal by the appellant.
The Tribunal accepted the declaration as genuine and differed from the A.A.C. that it was not acted upon.
The Tribunal however, held that though the appellant had invested his separate property with the character of joint family property, he being a sole surviving coparcener continued to have the same absolute and unrestricted interest in the property as before and, therefore, in law, the property had to be treated as his separate property.
Thereafter the Tribunal referred the question of law to the High Court.
Before the High Court it was contended by the appellant that it is open to a male member of a joint Hindu Family to convert his self acquire property into joint family property by throwing it into the common hotchpotch, and that it was not necessary that there should be an ancestral nucleus or that there should be more than one male in the joint family.
On the other hand, the department contended that it was contrary to the basic concept of a Hindu undivided family that a single male alongwith females could form a joint Hindu family and that it was necessary for the formation of a joint Hindu family that there should be more than one male entitled to claim partition of the joint family property.
165 The High Court did not go into the larger question and assumed for the purpose of argument that there need not be more than one male member for forming a joint Hindu family as a taxable unit.
The High Court held that since the assessee had no son, there was no undivided family.
According to the High Court, the case of the appellant fell within the ratio laid down by the Privy Council in Kalyanji 's case and that since under the personal law, the right to the income remained as it was before the appellant made the declaration, the income from Kathoke Lodge was liable to be assessed as the appellant 's individual income.
Dismissing an appeal by Special Leave, ^ HELD: (1) Even in the absence of an antecedent history of jointness, the appellant could constitute a joint Hindu Family with his wife and unmarried daughter.
True that the appellant could not constitute a coparcenary with his wife and unmarried daughter but under the Income Tax Act a Hindu undivided family, not a coparcenary is taxable unit.
A Hindu coparcenary is a much narrower body than the joint family.
[170F, 171B] (2) The joint family with all its incidents, is a creature of law and cannot be created by act of parties except to the extent to which a stranger may be affiliated to the family by adoption.
The appellant, however, was not by contract seeking to introduce in his family strangers not bound to the family by the tie of a sapindaship.
That it does not take more than one male to form a joint Hindu family with females, is well established.
[172A & G] (3) The contention of the Department that since prior to the declaration.
the family hotchpotch in the instant case was empty and there was nothing with which the property or its income could be blended and therefore, the declaration is ineffective to convert that property into joint family property was not raised before the Tribunal, and the same was not pressed in the High Court.
It was, therefore, not open to the department to take before this Court a contention which in the first place does not arise out of the reference and which the department 's counsel in the High Court raised but did not press.
[173G H, 174A C] (4) The cases of Kanji and Sewdas in Kalyanji 's case furnish a near parallel to the present case.
Though the property in their hands was assumed to be ancestral, income which Kanji and Sewdas received from it was treated as their separate property, as neither of them had a son who could take interest in the ancestral property by birth.
Applying that analogy, even if Kathoke lodge were to be an ancestral asset, its income would still have to be treated as the appellant 's separate property as he had no son who could take interest in that property by birth.
The ratio of Kalyanji 's case would, therefore, apply to the instant case.
The reason why the case of Kanji and Sewdas furnished a close parallel is the very reason for which their cases were held by this Court to be distinguishable from Lakshmi Narain 's case.
In Lakshmi Narain 's case the property was ancestral in the hands of the father, the son had acquired an interest by birth therein there was a subsisting Hindu Undivided family during the lifetime of the father and since that family did not come to an end on the death of the father, the Bombay High Court rightly held that the income continued to be the income of the joint family and was liable to be taxed as such.
The property of a joint family does not cease to belong to the family merely because the family is represented by a single coparcener who possesses rights which an owner of property may possess.
[176 D G, 177A, 178, G H, 179A] (5) There are thus two classes of cases each requiring a different approach.
In cases where the property belongs to a subsisting undivided family the property does not cease to have that character merely because the family is represented by a sole surviving coparcener who possesses rights which an owner of property may possess, or for that matter even if the family for the time being consists only of widows of deceased coparceners.
In cases where the property did not belong to a subsisting undivided family, whether any property has acquired the 166 character of joint family property has acquired the character of joint family property in the hands of an assessee depends on the composition of the family.
A joint Hindu family can consist of a man, his wife and daughter but the mere existence of a wife or daughter will not justify the assessment of income from the joint family property in the status of the head as a manager of the joint family.
Once it is realised that there are two distinct classes of cases which require a different approach there would be no difficulty in understanding the implications of the apparently conflicting tests evolved as guides for deciding the two classes of cases.
Kathoke Lodge was not an asset of a pre existing joint family.
It became an item of joint family property for the first time when the appellant threw what was his separate property into the family hotchpotch.
The appellant had no son.
His wife and unmarried daughter were entitled to be maintained by him from out of the income of Kathoke Lodge while it was his separate property.
Their rights in that property are not enlarged for the reason that the property was thrown into the family hotchpotch.
Not being co parceners of the appellant, they have neither a right by birth in the property nor the right to demand partition nor indeed the right to restrain the appellant from alienating the property for any purpose whatsoever.
The property which the appellant has put into the common stock may change its legal incidence on the birth of a son but until that event happens, the property in the eyes of Hindu Law is really his.
He can deal with it as a full owner, unrestrained by considerations of legal necessity or benefit of the estate.
He may sell it mortgage it or make a gift of it.
Even a son born or adopted after the alienation shall have to take the family hotchpotch as he finds it.
[180 G, H, 181 A D, 182 E H, 183A] (7) Since the personal law of the appellant regards him as the owner of Kathoke lodge and the income therefrom as his income even after the property was thrown into the family hotchpotch, the income would be chargeable to income tax as his individual income and not that of the family.
[183B C]
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<s>[INST] Summarize the judgementCriminal Appeal No. 129 of 1966.
Appeal by special leave from the judgment and order dated March 21, 1966 of the Calcutta High Court in Criminal Revision No. 309 of 1966.
521 A. K. Sen, P.K. Chatterjee, M.M. Kshatriya and G.S. Chatterjee, for the appellants.
B. Sen and P.K. Chakravarti, for the respondent.
The Judgment of the Court was delivered by Shah, J.
Mahendra Lal and Probhat Kumar Sarkar were the promoters, and Almohan Das was the first Chairman of the Board of Directors of the Great Indian Steam Navigation Company Ltd. Messrs. Das Brothers of which Almohan Das was the sole proprietor became the managing agents ' of the Company in 1945.
On July 2, 1951, Das Group Ltd. of which also Almohan Das was the principal Director took over the managing agency.
The Registrar of Companies, West Bengal filed a complaint in the Court of the Chief Presidency Magistrate alleging that sometime between March 1, 1945 and December 31, 1947 a sum of .Rs.
7,23,031 9 6 was advanced by the.
Company to the managing agents Messrs Das Brothers; that on July 2, 1951 Messrs Das Brothers resigned from the managing agency and Messrs Das Group Ltd. took over the managing agency; that Almohan Das was at all material times a director of the company and also a director of Messrs Das Group Ltd. and the sole proprietor of Messrs Das Brothers; and that the complainant had reason to believe that Almohan Das with other directors of the company had committed offences under sections 86 D and 87 D of the Indian Companies Act, 1913.
The complainant requested that a through investigation .be made in the matter.
The Chief Presidency Magistrate, Calcutta, referred the case to the police for investigation.
In the course of investigation of the complaint referred to him, Sub Inspector J.N. Mukherjee filed a First Information against eight persons (including the five appellants in this appeal) charging them with having, conspired to commit criminal breach of trust in respect of the company 's funds, falsification of accounts and making false returns, balance sheets and accounts, and in furtherance of the object of the conspiracy with committing offences punishable under sections 409 and 477A I.P. Code and under section 282 of the Indian Companies Act, 1913.
After investigation, Sub Inspector Mukherjee submitted on February 29, 1958, a report under section 173 of the Code of Criminal Procedure in the Court of the Chief Presidency Magistrate for those offences against seven persons including the five appellants.
The Presidency Magistrate, 9th Court, to whom the case was transferred for trial, rejected the contention raised by counsel for the defence that to a charge made against a director in relation to 522 the affairs of the company, the Indian Penal Code can have no application, and the prosecution, if any, may be instituted under the provisions of the Indian Companies Act alone.
The Magistrate also held that it was open to the police officer to whom the case was referred for investigation to submit a charge sheet of his own initiative and that the Court had jurisdiction to enquire into the charge so made without the sanction of the High Court.
A revision application was filed in the High Court of Calcutta against that order, but the application was rejected.
Proceedings were then resumed by the Magistrate on December 5, 1961, and a large number of witnesses were examined before him and several documents were tendered in evidence.
On December 3, 1965, the Presidency Magistrate committed the accused to stand trial for offences under sections 120B read with 409 & 477A I.P. Code before the Court of Session.
He observed: ". having regard to the entire evidence on record and facts and circumstances of the case, I am convinced prima facie that good grounds exist for framing charge under section 409 I.P.C. against accused Almohan Das with charge under section 120B read with section 409 I.P. Code aaginst (1) Almohan Das, (2) Sisir K. Das, (3) Nara Singha Pal, (4) Mohendra Lal Kundu and (5) Provat Kumar Sarkar, another charge under section 467 read with section 34 I.P. Code against (1) Almohan Das, (2) Nara Singha Pal, and (3) Mohendra L. Kundu for forging Ext.
5, and last under section 477A against (1) Aimoban Das, (2) Nara Singha Pal, (3) Mohendra Lal Kundu,(4) Provat Kumar Sarkar and (5) Sisir Kumar Das in respect of falsification of shareholders minute book (Ext. 18) purporting to ratify the action of Almohan Das regarding the funds of the G.I.S.N. & Co. Ltd." Against this order, a revision application was filed in the High Court of Calcutta which was 'rejected in limine.
Against the order passed by the High Court, this appeal has been filed with special leave.
In the present case the order of commitment was made under section 207A of the Code of Criminal Procedure.
Normally the High Court in a revision application filed against the order of commitment under section 207A will not enter upon a reappraisal of the evidence on which the order of commitment is made.
The High Court would be justified in exercising its revisional jurisdiction where a substantial question of law arises on which the correctness of the order of commitment may be effectively challenged, where there is no evidence on which the order of commitment could be made, where there has been denial of a right to fair 523 trial, where there is reason to think because of failure to comply with the rules of procedure or conditions precedent to initiation of criminal proceedings, where by ignoring the substantive law which constitutes the offence, or misconception of evidence on matters of importance grave injustice has resulted, and on similar other grounds.
But in other cases, interference with the order of the Magistrate committing the accused for trial may not be justified and the trial before the Court of Session should be allowed to run its course.
Counsel for the appellants submitted that there was no evi dence on which the order of commitment could be made.
We do not think that there is any ground for so holding.
It was the prosecution case that in order to commit criminal breach of trust in respect of an amount exceeding Rs. 5 lakhs by allowing it to remain with Messrs Das Brothers the previous managing agents of the company of which Almohan Das was the sole proprietor and from whom Messrs Das Group Ltd. took over the managing agency a conspiracy was entered into between the seven named persons, and the minutes book of the meetings of the Board of Directors and the shareholders ' minutes book were fabricated and criminal breach of trust was committed in respect of the funds belonging to the Company.
It is true that in the balance sheet Ext.
137 for the year ending December 31, 1952, on the assets side is an item 'Sundry Advances (Unsecured) ' inclusive of Rs. 5,78,941 7 0 due by a firm in which a director of the Company was a partner.
But this, it is the case of the prosecution, was not supported by any resolution passed by the Board of Directors.
By letter dated June 21, 1956, the Additional Registrar of Companies asked the Company to furnish a certified copy of the minutes of the Board of Directors .in which the loan had been made to the managing agents of the Company.
In reply thereto by letter dated July 12, 1956, the Managing Agents wrote that as the money was held by the managing agents and was not given or treated as a loan, there was no resolution of the Board of Directors in that connection.
On September 29, 1956, the Additional Registrar of Companies again wrote a letter .to the Company enquiring whether the amount of Rs. 5,78,941 7 0 which was lying with the previous managing agents of the Company Messrs Das Brothers had since been realised, and if so, the evidence adjusting the liability,.
and if not, to intimate with material evidence whether any steps had since been taken by the Company for the realization of the dues and how the matter stood.
in the course of the investigation the officer in charge attached a directors ' minutes book Ext.
5 which contains the minutes of a resolution authorising Almohan Das to retain the funds of the Company.
Therefore, there was some evidence on which the 524 charge for fabrication of the Director 's Minutes Book may be sustained.
In dealing with the charge for fabricating the Shareholders ' Minutes Book the learned Magistrate has observed that the materials on the record made out a strong prima facie case that the Shareholders ' Minutes Book Ext.
18 is also a forged document.
The circumstances which lent colour to the prosecution, in the view of the learned Magistrate were (1) that Ext.
18 starts from February 28, 1945, although the Company was incorporated in 1942, (2) in many meetings the signatures of the shareholders were not taken although in some meetings the shareholders signed the minutes book, (3) resolutions of Amaresh Pramanick and Sudhir Kanti Sarkar are not incorporated in the minutes book, (4) some portions in the last page in the agreement (Ext. 20) with the managing agency firm Das Group appear to have been erased out and the agreement was thus tampered with, (5) the minute book Ext.
18 does not incorporate 'the relevant questions, and there appeared tampering with pagination, (6) the evidence of P.Ws. 6 & 16 regarding their presence or absence, and (7) the testimony of P.Ws. 15 & 24 suggested that most of the persons shown to have attended meetings were at the "back and call of the accused Almohan Das".
Whether this evidence may justify a conviction cannot be enquired into at this stage.
The evidence was prima facie sufficient to frame a charge.
The Presidency Magistrate was of the view that a case for framing a charge for committing the case to the Court of Session was made out and the High Court has summarily dismissed the revision application in exercise of its jurisdiction.
It was contended before us that under section 209(1) of the Code of Criminal Procedure, a charge may be framed only if in the view of the committing Magistrate the evidence on record is sufficient to justify conviction of the accused.
Section 209 of the Code provides: "When the evidence referred to in section 208, subsections (1) and (3), has been taken, and he has (if necessary) examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him, such Magistrate shall, if he finds that there are not sufficient grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly." 525 In terms section 209 applies to cases which are instituted otherwise than on a police report.
But the principle underlying that section applies to cases which are instituted on a police report.
A Magistrate holding an enquiry is not intended to act.
merely as a recording machine.
He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction.
If there is no prima facie evidence or the evidence is totally unworthy of credit, it is his duty to discharge the accused: if there is some evidence on which a conviction may reasonably be based, he must commit the case.
The Magistrate at that stage has no power to evaluate the evidence for satisfying himself of the guilt of the accused.
The question before the Magistrate at that stage is whether there is some credible evidence which would sustain a conviction.
We do not agree with counsel for the appellants that there was no evidence on which a charge could be framed against the appellants or that the evidence was so totally unworthy of credit ' that an order recording the conviction against the accused could not be made thereon.
The appeal fails and is dismissed.
We trust that the case which has been held up for a very long time will be taken up by the Court of Session for trial with the least practicable delay.
R.K.P.S. Appeal dismissed.
[/INST]The St. Xavier 's College was established by the Jesuits of Ranchi and was affiliated to Patna University in 1944.
The management of the College was in the hands of a governing body consisting of 11 members.
The terms of service of the religious staff of the College were determined by the Jesuit Mission authorities and those of the lay staff, including their appointment, were determined by the governing body of the College.
The object of rounding the college inter alia was "to give Catholic youth .a full course of moral and liberal education, by imparting a thorough religious instruction and by maintaining a Catholic atmosphere in the Institution".
However, the college was open to non Catholics and all non catholic students received a course of moral science.
The petitioners in the present petition under Article 32 contended that the college was rounded by a Christian minority and claimed the right to administer it as a constitutional right guaranteed to minorities by article 30.
The petitioner 's complaint was that the Bihar Legislature, by introducing section 48 A in the Bihar Universities Act with effect .from
March 1, 1962, deprived them of the right under article 30 in that Its provisions required, inter alia: that appointments, dismissals, reduction in rank, etc.
, of staff must be made by the Governing body on the recommendation of the University Service Commission for affiliated colleges; in no case could the Governing body appoint a person not recommended by the Commission; the Commission had to be consulted in all disciplinary matters and any punishment imposed on a teacher only in accordance with the findings of the Commission, etc.
Subsequent to the introduction of section 48 A, in view of differences arising between the University and the college, the University withdrew the affiliation of the college on September 26, 1967 for violating the provisions of the Act and the statute of the University.
While the present petition under article 32 of the Constitution was pending section 48 B was inserted into the Bihar Universities Act whereby it was provided that the Governing body of affiliated colleges established by a minority based on religion or language which .the minority had a right to administer, would be entitled to make appointments, dismissals, termination of service or reduction in rank of teachers or take other disciplinary measures subject only to the approval of the Commission and the Syndicate of the.
University.
The petitioners therefore also claimed the protection of section 48 B.
On behalf of the respondents it was conceded that the Jesuits answered the description of a minority based on religion; but it was contended that as the protection to minorities in article 29(1) is only a right to conserve a distinct language, script or culture of its own, the college did not qualify for the protection of article 30(1) because (i) it was not bounded Sup.
CI/69 6 74 to conserve them and (ii) it was open to all sections of the people.
The question therefore was whether the college: could only claim protection of section 48 B of the Act read with article 30(1) of the Constitution if it proved.
that it was furthering the rights mentioned in article 29(1).
HELD: The protection claimed by the petitioners clearly flowed from the words of Article 30(1).
The width of article 30(1) cannot be cut down by introducing in it considerations on which article 29(1) is based.
The latter article is a general protection which is given to.
minorities to, conserve their language, script or culture.
The former is a special right to minorities to establish educational institutions of their choice.
This choice is not limited to institutions seeking W conserve language, script or culture and the choice is not taken away if the minority community having established an educational institution of its choice also admits members of other communities.
This is a circumstance irrelevant for the application of article 30(1) since no such limitation is expressed and none can be implied.
The two.
articles create two separate rights, although it is possible that they may meet in a given case.
[80 G, H] In re the Kerala Education Bill, 1957, [1959] S.C.R. 995, Rev. Sidhajbhai Sabhai and Ors.
vs State of Bombay and Anr.
; , 850; considered.
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<s>[INST] Summarize the judgementminal Appeal No. 162 of 1959.
Appeal by special leave from the judgment and order dated January 13, 1959, of the Rajasthan High Court in D. B. Criminal Revision No. 47 of 1957.
267 N. C. Chatterjee, J. L. Datta and C. P. Lal, for the appellant.
Mukat Behari Lal Bhargava and Naunit Lal, for respondent No.2.
April 24.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
On June 13,1950, the Municipal Committee, Ajmer, respondent 2, issued a notice against the appellant, the Durgah Committee, Ajmer, under section 153 of the Ajmer Merwara Municipalities Regulation, 1925 (VI of 1925) (hereafter called the Regulation) calling upon it to carry out certain repairs in the Jhalra Wall which was in a dilapidated condition.
The appellant did not comply with the said requisition and so respondent 2 served another notice on the appellant under section 220 of the Regulation inti mating to it that the required repairs would be carried out at the expense of respondent 2 and that the cost incurred by it would be recovered from the appellant.
This notice was served on July 3, 1950.
Even so the appellant took no steps to make the repairs and so respondent 2 proceeded to get the repair work done at its expense which amounted to Rs. 17,414.
Under section 222(4) of the Regulation this sum became recoverable from the appellant as a tax.
A notice of demand in that behalf was issued on the appellant on April 1, 1952, and in pursuance of the said notice respondent 2 applied to the Additional Tehsildar and Magistrate II Class, Ajmer, for the recovery of the said amount under section 234 of the Regulation.
In the proceedings before the learned Magistrate the appellant raised certain pleas.
These pleas were rejected and an order was passed calling upon the appellant to pay the dues in question by August 30, 1956.
Against this order the appellant preferred a criminal revision application in the Court of the Sessions Judge, Ajmer.
The learned Sessions Judge considered the contentions raised by the appellant and held that the view taken by the Magistrate cannot be said to be incorrect and so there was no ground to interfere in revision.
Feeling aggrieved by the dismissal of its 268 revision application the appellant moved the High Court of Judicature for Rajasthan in its revisional jurisdiction.
Before the High Court, on behalf of respondent 1, the State of Rajasthan, as well as respondent 2, a preliminary objection was raised that the criminal revision application filed by the appellant was incompetent since the Magistrate who entertained respondent 2 's application made under section 234 ",as not an inferior criminal court under section 439 of the Code of Criminal Procedure.
This preliminary objection was upheld by the High Court and the criminal revision application dismissed on that ground.
It is against this order that the appellant has come to this Court by special leave; and the short question which the appeal raises for our decision is whether the Magistrate who entertained the application made before him by respondent 2 under section 234 was an inferior criminal court under section 439 of the Code of Criminal Procedure.
Before dealing with this point it is relevant to refer to the scheme of the material provisions of the Regulation.
Section 153 confers power on the Municipality to order removal or repair of buildings which may be found in a dangerous state.
Under this section the Committee may by notice require the owner of the building, wall or structure to remove the same forthwith or cause such repairs as the Committee may consider necessary for the public safety.
This section also empowers the Committee to take at the expense of the owner any steps which it thinks necessary for the purpose of averting imminent danger.
If the owner on whom a notice is served under section 153 complies with the requisition nothing more need be done.
If, however, the owner does not comply with the requisition served on him the Committee is empowered to cause the repairs to be made after six hours notice to the owner under section 220.
This section provides that whenever the terms of any notice issued under this Regulation have not been complied with the Committee may, after six hours ' notice, cause the act to be done by its officers.
As a corollary to this provision, and indeed as its consequence, section 222 empowers the Committee to recover the cost of the work done 269 under section 220.
Section 222(1) authorises the Committee to recover the cost of the work from the person in default.
Sub sections (2) and (3) of section 222 then deal with the question as to which person should be held to be in default, the owner or the occupier; with that question we are not concerned in the present appeal.
Sub section (4) of section 222 provides that where any money recoverable by the Committee under this section is payable by the owner of the property, it shall be charged thereon and shall be recoverable as if it were a tax levied by the Committee on the property.
By sub section (5) it is provided that the contract between the owner and the occupier is not affected by this section.
It is under section 222(4) that a demand notice was served on the appellant by respondent 2.
That takes us to section 234 which provides for the machinery of recovery of municipal claims.
This section provides, inter alia, that any tax claimable or recoverable by a Committee under this Regulation, after demand has been made therefor in the manner prescribed by rule, be recovered on application to a Magistrate having jurisdiction within the limits of the Municipality or in any other place where the person by whom the amount is payable may for the time being reside, by the distress and sale of any movable property within the limits of such Magistrate 's jurisdiction belonging to such person.
The proviso to this section prescribes that nothing in this section shall prevent the Committee at its discretion from suing for the amount payable in any competent Civil Court.
It would thus be seen that the object of making an application to the Magistrate is to obtain an order from the Magistrate direct ing the recovery of the tax claimable or recoverable by distress and sale of any movable property belonging to the defaulter.
It is under this section that tile Magistrate was moved by respondent 2.
That in brief is the scheme of the material provisions of the Regulation.
The main argument which Mt .
Chatterjee, for the appellant, has pressed before us is that in determining the nature of the proceedings under section 234 and the character of the Magistrate who entertains an application made under the said section, it is important to 35 270 bear in mind that a person in the position of the appellant has no other opportunity to challenge the validity of the notice as well as the validity of the claim made against him by the Committee.
The argument is that it would be open to the owner to contend that the notice issued under section 153 is invalid or frivolous.
It would also be open to him to contend that the amount sought to be recovered from him is excessive and that even if the repairs were carried out they could not have cost as much, and since the scheme of the Regulation shows that it provides no opportunity to the owner to raise those contentions except in proceedings under section 234 the nature of the proceedings and the character of the Magistrate who entertains them should be liberally construed.
The proceedings should be deemed to be judicial proceedings and the Magistrate should be held to be an inferior criminal court when he entertains the said proceedings.
If the assumption on which the argument proceeds that the Regulation provides no other opportunity to the owner to challenge the notice or to question the amount claimed from him were sound then there would be some force in the contention that section 234 should be liberally construed in favour of the appellant.
But is that assumption right? The answer to this question would depend upon the examination of three relevant provisions of the Regulation; they are sections 222(4), 93 and 226.
We have already seen that section 222(4) provides that any money recoverable by the Committee under section 222(1) shall be recovered as if it were a tax levied by the Committee on the property and shall be charged thereon.
Section 93 provides for appeals against taxation.
Section 93(1) lays down, inter alia, that an appeal against the assessment or levy of any tax under this Regulation shall lie to the Deputy Commissioner or to such officer as may be empowered by the State Government in this behalf.
The remaining five subsections of section 93 prescribe the manner in which the appeal should be tried and disposed of.
If the amount recoverable by respondent 2 from the appellant is made recoverable as if it were 271 a tax levied by the Committee, then against the levy of such a tax an appeal would be competent under section 93(1).
Mr. Chatterjee argues that section 93(1) provides for an appeal against the levy of a tax, and he draws a distinction between the amount made recoverable as if it were a tax and the amount recoverable as a tax.
His contention is that the amount which is recoverable under section 222(1) is no doubt by fiction deemed to be a tax but against an amount thus deem.s.
93(1).
We are not impressed by this argument.
If by the fiction introduced by section 222(4) the amount in question is to be deemed as if it were a tax it is obvious that full effect must be given to this legal fiction; and in consequence just as a result of the said section the recovery procedure prescribed by section 234 becomes available to the Committee so would the right of making an appeal prescribed by section 93(1) be available to the appellant.
The consequence of the fiction inevitably is that the amount in question can be recovered as a tax and the right to challenge the levy of the tax accrues to the appellant.
This position is made perfectly clear by section 226.
This section provides, inter alia, that where any order of a kind referred to in section 222 is subject to appeal, and an appeal has been instituted against it, all proceedings to enforce such order shall be suspended pending the decision of the appeal, and if such order is set aside on appeal, disobedience thereto shall not be deemed to be an offence.
It is obvious that this section postulates that an order passed under section 222 is appealable and it provides that if an appeal is made against such an order further proceedings would be stayed.
It is common ground that there is no other provision in the Regulation providing for an appeal against an order made under section 222(1); and so inevitably we go back to section 93 which provides for an appeal against the levy of a tax.
It would be idle to contend that though section 226 assumes that an appeal lies against an order made under section 222(1) the Legislature has for.
gotten to provide for such an appeal.
Therefore, in our opinion, there can be no doubt that reading 272 sections 222, 93 and 226 together the conclusion is inescapable that an appeal lies under section 93(1) against the demand made by the Committee on the owner of the property under section 222(1).
If that be so, the main, if not the sole argument, urged in support of the liberal construction of section 234 turns out to be fallacious.
ow, looking at section 234 it is clear that the proceedings initiated before a Magistrate are no more than recovery proceedings.
All questions which may legiti mately be raised against the validity of the notice served under section 153 or against the validity of the claim made by the Committee under section 222 can and ought to be raised in an appeal under section 93(1), and if no appeal is preferred or an appeal is preferred and is dismissed then all those points are concluded and can no more be raised in proceedings under section 234.
That is why the nature of the enquiry contemplated by section 234 is very limited and it prima facie partakes of the character 'of a ministerial enquiry rather than judicial enquiry.
In any event it is difficult to hold that the Magistrate who entertains the application is an inferior criminal court.
The claim made before him is for the recovery of a tax and the order prayed for is for the recovery of the tax by distress and sale of the movable property of the defaulter.
If at all, this would at best be a proceeding of a civil nature and not criminal.
That is why, we think, whatever may be the character of the proceedings, whether it is purely ministerial or judicial or quasi judicial, the Magistrate who entertains the application and holds the enquiry does so because he is designated in that behalf and so he must be treated as a persona designata and not as a Magistrate functioning and exercising his authority under the Code of Criminal Proce dure.
He cannot therefore be regarded as an inferior criminal court.
That is the view taken by the High Court and we see no reason to differ from it.
In the present appeal it is unnecessary to consider what would be the character of the proceedings before a competent Civil Court contemplated by the proviso.
Prima facie such proceedings can be no more than execution proceedings.
273 Mr. Chatterjee also attempted to argue that the proceedings under section 234 taken against the appellant by respondent 2 were incompetent because a demand, has not been made by respondent 2 on the appellant in the manner prescribed by rule as required by section 234.
It does appear that rules have not been framed under the Regulation and so no form has been prescribed for making a demand under section 222(1).
Therefore the argument is that unless the rules are framed and the form of notice is prescribed for making a demand under section 222(1) no demand can be said to have been made in the manner prescribed by rules and so an application cannot be made under section 234.
There are two obvious answers to this contention.
The first answer is that if the revisional application made by the appellant before the High Court was incompetent this question could not have been urged before the High Court because it was part of the merits of the case and so cannot be agitated before us either.
As soon as it is held that the Magistrate was not an inferior criminal court the revisional application filed by the appellant before the High Court must be deemed to be incompetent and rejected on that preliminary ground alone.
Besides, on the merits we see no substance in the argument.
If the rules are not prescribed then all that can be said is that there is no form prescribed for issuing a demand notice; that does not mean.
that the statutory power conferred on the Committee by section 222(1) to make a demand is unenforceable.
As a result of the notice served by respondent 2 against the appellant respondent 2 was entitled to make the necessary repairs at its cost and make a demand for reimbursement of the said cost.
That is the plain effect of the relevant provisions of the Regulation; and so, an amount which was claimable by virtue of section 222(1) does not cease to be claimable just because rules have not been framed prescribing the form for making the said demand.
In our opinion, therefore, the contention that the application made under section 234 was incompetent must be rejected.
It now remains to consider some decisions to which 274 our attention was drawn.
In Crown through Municipal Committee, Ajmer vs Amba Lal (1), the Judicial Commissioner Mr. Norman held that a Magistrate entertaining an application under section 234 of the Regulation is an inferior criminal court.
The only reason given in sup port of this view appears to be that the Magistrate before whom an application under the said section is made is appointed under the Code of Criminal Procedure, and so he is a criminal court although he is not dealing with crime.
That is why it was held that he had jurisdiction to decide whether the conditions under which the Municipality can resort to the Magistrate are fulfilled.
Having come to this conclusion the learned Judicial Commissioner held that a revision against the Magistrate 's order was competent.
In our opinion this decision does not correctly represent the true legal position with regard to the character of the proceedings under section 234 and the status of the Magistrate who entertains them.
In Re Dinbai Jijibhai Khambatta (2) the Bombay High Court held that the order made, by a Magistrate under section 161(2) of the Bombay District Municipalities Act, 1901 (Bombay III of 1901) can be revised by the High Court under section 435 of the Code of Criminal Procedure.
This decision was based on the ground that the former part of section 161 was purely judicial and it was held that the latter part of the said section though not clearly judicial should be deemed to partake of the same character as the former part.
Thus the decision turned upon the nature of the provisions contained in section 161(2).
In V. B. D 'Monte vs Bandra Borough Municipality(1) a Full Bench of the Bombay High Court, while dealing with a corresponding provision of the Bombay Municipal Boroughs Act XVIII of 1925, namely, section 110, has held that in exercising its revisional jurisdiction under section 110 the High Court is exercising a special jurisdiction conferred upon it by the said section and not the jurisdiction conferred under section 435 of the Code of Criminal Procedure.
According to this (1) Ajmer Merwara Law journal, Vol.
V, P. 92.
(2) Bom.
(3) I.L.R. 275 decision the matter coming before the High Court in such revision is of civil nature and so the revisional application would lie to the High Court on its civil side and not on its criminal side.
It is significant that the decision in the case of Emperor vs Devappa Ramappa (1) which took a contrary view was not followed.
In Re Dalsukhram Hurgovandas (2) the Bombay High Court had occasion to consider the nature of the proceedings contemplated by section 86 of the Bombay District Municipal Act III of 1901.
Under the said section a Magistrate is empowered to hear an appeal specified in the said section; and it was held that in hearing the said appeals the Magistrate is merely an appellate authority having jurisdiction to deal with questions of civil liability.
He is therefore not an inferior criminal court and as such his orders are not subject to the revisional jurisdiction of the High Court under section 435 of the Code of Criminal Procedure.
The Madhya Bharat High Court had occasion to consider a similar question under section 153 of the Gwalior Municipal Act (1993 Smt.) in Municipal Committee, Lashkar vs Shahabuddin (3).
Under the said section an application can be made by the Municipality for recovering the cost of the work from the person in default.
It was held that the order passed in the said proceedings cannot be revised by the High Court under section 435 because the order is an administrative order and that there was no doubt that the Magistrate was not an inferior criminal court.
In Mithan Musammat vs The Municipal Board of Agra & Anr., (4) the Allahabad High Court has held that a Magistrate passing an order under section 247(1) of the United Provinces Municipalities Act, 1926 does not do so as an inferior criminal court within the meaning of section 435 of the Code of Criminal Procedure.
To the same effect is the decision of the Allahabad High Court in Madho Ram vs Rex (1).
We have referred to these decisions only to illustrate that in dealing with similar provisions under the (1) (3) A.I.R. (39) 1952 M.B. 48.
(2) (4) I.L.R. (1956) 2 All.
(5) I.L.R. (1950) All.
276 municipal law different High Courts seem to have taken the view that Magistrates entertaining recovery proceedings under the appropriate statutory provisions are not inferior criminal courts under the Code of Criminal Procedure.
Though we have referred to these decisions we wish to make it clear that we should not be taken to have expressed any opinion about the correctness or otherwise of the views taken by the different High Courts in regard to the questions raised before them.
The result is the appeal fails and is dismissed.
Appeal dismissed.
[/INST]The petitioner after a prolonged litigation and having ful filled all the conditions of the Delhi Rent Control Act, obtained decrees of ejectment against the tenants.
126 In the meantime the Slum Areas (Improvement and Clearance) Act, 956, came into force and the petitioner in accordance with section s.9 of the said Slum Areas Act applied to the competent authority for permission to execute the decree, which permission was refused inter alia on the grounds of hardship to the tenants and the human aspect of the case.
The appeals therefrom were also rejected.
The petitioner moved the Supreme Court for issue of a writ of certioraris to quash the orders on the ground that (1) section 19 of the Act was invalid and unconstitutional as violative of the petitioner 's rights guaranteed by articles 14 and 19(1)(f) of the Constitution, in as much as section 19 of the Slum Areas Act was a super imposition on the rights of the petitioner who had satisfied the requirements of the Rent Control Act before obtaining his decree, which amounted to unreasonable restrictions on the right to hold property guaranteed by the Constitution, and (2) that section 19(3) of the Slum Areas Act vested an unguided, unfettered, and uncontrolled power in an executive officer to withhold permission to execute a decree which the petitioner had obtained after satisfying the reasonable requirements of the law as enacted in the Rent Control Act, (3) The power conferred on the competent authority by section 19(3) of the Slum Areas Act was an excessive delegation of legislative power and therefore unconstitu tional.
Held, that section 19 of the Slum Areas (Improvement and Clea rance) Act, 1956, was not obnoxious to the equal protection of laws guaranteed by article 14 of the Constitution.
There was enough guidance to the competent authority in the use of his discretion under section 19(1) of the Act.
The restrictions imposed by section 19 of the Act could not be said to be unreasonable.
The guidance could be derived from the enactment and that it bears a reasonable and rational relationship to the object to be attained by the Act and in fact would fulfil the purpose which the law seeks to achieve, viz., the orderly elimination of slums, with interim protection for the slum dwellers until they were moved into better dwellings.
The order of the competent authority in the present case was not open to challenge as it was in line with the policy and purpose of the Act.
So long as the Legislature indicated in the operative provi sions of the statute with certainty, the policy and purpose of the enactment, the mere fact that the legislation was skeletal or that every detail of the application of law to a particular case, was not laid down in the enactment itself or the fact that a discretion was left to those entrusted with administering the law, afforded no basis either for the contention that there had been an excessive delegation of legislative power as to amount to an abdication of its functions, or that the discretion vested was uncanalised and unguided so as to amount to a carte blanche to discriminate.
If the power or discretion has been conferred 127 in a manner which was legal and constitutional the fact that the Parliament could possibly have made more detailed provi sion, could not be a ground for invalidating the law.
The freedom to 'hold property ' was not absolute but was subject, under article 19(5), to "reasonable restrictions" being A placed upon it "in the interests of the general public".
The criteria for determining the degree of restriction on the right to hold property which would be considered reasonable, were by no means fixed or static, but must obviously vary from age to age and should be related to the adjustments necessary to solve the problems which communities faced from time to time.
If law failed to take account of unusual situations of pressing urgency arising in the country and of the social urges generated by the patterns of thought, evolution and of social consciousness, it would have to be written down as having failed in the very purpose of its existence.
Where the legislature enacted laws, which in its wisdom, was considered necessary for the solution of human problems, the tests of "reasonableness", had to be viewed in the context of the issues which faced the legislature.
In the construction of such laws and particularly in judging of their validity the courts had to approach it from the point of view of furthering the social interest which it was the purpose of the legislation to promote, for the courts were not, in these matters, functioning as it were in vacuo, but as parts of a society which was trying, by enacted law, to solve its problems and achieve social concord and peaceful adjustment and thus furthering the moral and material progress of the community as a whole.
That the provisions of the special enactment, the Slums Areas (Improvement and Clearance) Act, 1956, will in respect of the buildings in areas declared slum areas operate in addition to the Delhi & Ajmer Rent Control Act, 1952.
Ramakyishna Dalmia vs justice Tendolkar; , , Harishankar Bagla vs State of Madhya Pyadesh, , M/s. Dwarka Prasad Laxmi Narain vs The State of Uttar Pradesh, ; , State of West Bengal vs Anwar Ali Sarkar; , , Kathi Ratting Rawat vs State of Saurashtra; , , Kedar Nath Bajoria vs State of West Bengal, ; and Pannalal Binjraj vs Union of India, ; , discussed.
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<s>[INST] Summarize the judgementAppeal No. 375 of 1976.
(Appeal by Special Leave from the Judgment and Order dated 7.11.1975 of the High Court at New Delhi in Civil Writ No. 1123 of 1975) G.B. Pai, O.C. Mathur and D.N. Mishra, for the appellant.
M.K. Ramamurthi, S.C. Jain and Madan Mohan, for respond ent No. 1.
The Judgment of the Court was delivered by SARKARIA, J.
The principal question that arises in this appeal by special leave is: Whether an order of the Labour Court to the effect, that since no demand of the workmen had been served on the employer, no industrial dispute had come into existence in accordance with law, and as such the Reference was invalid and the Court had no jurisdiction to adjudicate the matter referred to it by the Government, is an "award" for the purposes of Section 19 of the , (for short, called the Act)? Cox & Kings (Agents) Ltd. (for short, the Management) dismissed from service three of their workmen after a domes tic enquiry conducted against them on certain charges.
In May 1967, the Lt. Governor of Delhi made a Refer ence under section 10 read with section 12(5) of the Act to the Labour Court, Delhi, to determine: "Whether the terminations of services of S/Shri H.S. Rawat, Bidhi Chand and Ram Sarup Gupta were unlawful and unjustified, and if so, to what relief are these workmen entitled?" By an amendment of their written statement in February, 1969, augmented by an application dated 17.8.1971; the Management raised a preliminary objection that since no demand notice had been ,served on the Management, no indus trial dispute had legally come into existence, and as such the Reference was invalid and the Labour 334 Court had no jurisdiction to adjudicate it.
By an order, dated September 27, 1972, the Labour Court accepted the objection, holding: ". that no industrial dispute came into existence before this reference as the workmen have failed to establish serving of demand on the management prior to this reference.
The effect of this finding is that the reference could not have been made for adjudication and the same is accordingly invalid and hence the question of deciding the issue as in the reference or other issues does not arise as the industrial dispute under reference did not come into existence in accordance with law before this reference.
This award is made accordingly.
" Thereafter, the workmen on 25.10.1972, raised a dispute by serving demand notices on the Management.
By his order dated 2.5.1973, the Lt. Governor, Delhi, again made a Refer ence to the Labour Court, under the Act for adjudication of the same matter relating to the termination of the services of the aforesaid workmen.
The Management raised, inter alia, a preliminary objec tion that a second Reference within one year of the first `award ', dated September 27, 1972, was not competent in view of what is contained in sec.
19 of the Act.
By an order dated 2.5.1973, the Labour Court dismissed the preliminary objections.
After recording the evidence produced by the parties, the Court held on merits, that the termination of the services of 3 workmen was illegal and unjustified.
The Court further found that Bidhi Chand work man had become gainfully employed elsewhere as a driver with better emoluments and it was therefore sufficient to award him compensation without any relief of reinstatement, at the rate of 50% of his wages for three years from 1966 to 1969 to the date of his getting employment elsewhere.
It further found that Ram Sarup Gupta had remained unemployed after his dismissal in 1966.
It therefore directed his reinstatement with full back wages and continuity of serv ice.
As regards H.S. Rawat, the Court found that he could not have remained unemployed throughout but was doing some work or the other for his living, may be with occasional spells.
The Court therefore held that Rawat was entitled to reinstatement and continuity of service with 50% back wages till the award Came into operation and he got his reinstate ment.
This award was made by the Labour Court on 1 5 1975.
The Management impugned this award by filing a writ petition under article 226 of the Constitution in the High Court of Delhi.
Only three contentions were canvassed by the Management at the preliminary heating before the High Court: (i) That the determination, dated 27.9.1972, by the Labour Court was an 'award ' as defined in section 2(b) of the Act, and in view of sub section
(3) of section 19, it had to be in operation for a period of one year.
It could be terminated only by a notice given under sub sections
(4) & (6) of section 19.
Since no such notice was given, the award continued to be in operation.
The second award, dated 1 5 1975, could not be validly made during the period, the 335 first award was in operation; (ii) The demand for reinstate ment was not made by the workmen till 1972 and the Labour Court was not justified in awarding them the relief of reinstatement together with compensation for back wages from 1966 onwards; (iii) The onus to show that the workmen had not obtained alternative employment, after their dismissal, was on the workmen and this onus has not been discharged.
On the other hand, the Labour Court wrongfully did not permit the Management to adduce additional evidence to show that the workmen had obtained alternative employment and, in consequence, were not entitled to back wages.
Regarding (i), the High Court held that since the `award ' dated 27.9.1972, was not one which imposed any continuing obligation on the parties, but had ended with its pronouncement, nothing in subsections (3) and (6) of sec.
19 was applicable to it.
As regards (ii), the High Court held that once the dismissal of the workmen was found illegal, it was inevita ble to award the compensation from the dates of dismissal till they found alternative employment or till the date of the award, as the case may be.
In regard to (iii), the High Court said that the ques tion of burden of proof as to who is to prove, whether the workmen did not get alternative employment for the period for which back wages have 'been awarded to them could arise only if no evidence was given by either party or if the evidence given by them was evenly balanced.
Neither of these circumstances was present before the Labour Court, and there was no good reason to disturb the finding of fact recorded by the Labour Court on this point.
The High Court thus rejected all the three contentions, and, in the result, dismissed the writ petition in limine, with a speaking order.
Hence this appeal.
Shri G.B. Pai has reagitated all the three points before us.
He assails the findings of the High Court, thereon.
Regarding point No. (i) Mr Pai 's argument is that the determination, dated 27.9.1972, also, was an `award ' within the second part of the definition of the term in a. 2(b) of the Act, inasmuch as it determined a question relating to an industrial dispute.
Emphasis has also been laid on the point that this `award ', dated 27.9.1972 was duly published by the Government under section 17(1) and had assumed finality under sub section
(2) of the same section.
This award dated 27.9.1972 proceeds the argument had to remain operative under sub section
(3) of section 19 for a period of one year from the date on which it became enforceable under section 17A i.e., a date one month after its publication.
It is submitted that no second Reference could be validly made by the Government during the period the first award remained operative, and since the second Reference, dated 2.5.1973 was made before the expiry of such period of the first award (which had not been terminated in the manner laid down in section 19), it was invalid and the consequential adjudication by the Labour Court on its basis, was null and void.
In this connection counsel has relied upon a 7 436SCI/77 336 judgment of this Court in Management of Bangalore Woollen, Cotton & Silk Mills Co. Ltd,.
vs The Workmen and ant.(1) wherein it was held that when there is a subsisting award binding on the parties, the Tribunal has no jurisdiction to consider the same points in a fresh reference.
In that case, the earlier award had not been terminated and the Reference was therefore held to be incompetent.
Reference has also been made to a single Bench Judgment of the Allaha bad High Court in Workmen of Swadeshi Cotton Mill, Co. Ltd. v Swadeshi Cotton Mills Co., Ltd., Kanpur and ors.
(2) As against this, Shri M.K. Ramamurthi maintains that the Labour Court 's order, dated May 1, 1972 was not an 'award ' within the definition of the term in s 2(b) inasmuch as it was not a determination, on merits, of any industrial dis pute or of any question relating to an industrial dispute.
In this connection reliance has been placed on a judgment of this Court in Civil Appeal No. 241 of 1964 (Technological Institute of Textiles vs Its Workmen and ors.(3).
Before dealing with the while to notice the relevant conten tions canvassed, it will be worthwhile to notice the rele vant statutory provisions.
The terms `award ' and `industrial dispute ' have been defined in the Act as follows: `Award ' means an interim or a final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Indus trial Tribunal and includes an arbitration award made under section 10A".
[vide section 2 (b)].
"Industrial dispute" means "any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non employment or the terms of employment or with the conditions of la bour, of any person", [vide section 2 (k)].
Section 10 describes the matters which can be referred to Boards, Courts or Tribunals for adjudication.
Only clause (i) of subsection (1) is material for our purpose.
It provides; "Where the appropriate Government is of opin ion that any industrial dispute exists or is apprehended, it may at any time by order in writing (a). (b) . (c) refer the dispute or any matter appear ing to be connected with, or relevant to the dispute, if if relates to any (1) ; (2) 42 Indian Factories Journal p. 255.
(3) 337 matter specified in the Second Schedule to a Labour Court for adjudication".
Sub section (4) requires the Labour Court to confine its adjudication to those points of dispute and matters incidental thereto which the appropriate Government has referred to it for adjudication.
The material part of section 19 reads as under: "(1) . (2) . (3) An award shall, subject to the provi sions of this section remain in operation for a period of one year from the date on which the award becomes enforceable under section 17A; Provided that the appropriate Government may reduce the said period and fix such period as it thinks fit: "Provided further that the appropriate Govern ment may, before the expiry of the said peri od, extend the period of operation by any period not exceeding one year at a time as it thinks fit so, however, that the total period of operation of any award does not exceed three years from the date on which it came into operation.
(4) Where the appropriate.
Government, Whether of its own motion or on the application of any party bound by the award, considered that since the award was made, there has been a material change in the circumstances on which it was based, the appropriate Government may refer the award or a part of it to a Labour Court, if the award was that of a Labour Court or to a Tribunal, if the award was that of a Tribunal or of a National Tribunal for decision whether the period of operation should not, by reason of such change, be shortened and the decision of Labour Court or the Tribunal, as the case may be, on such reference shall be final.
(5) Nothing contained in sub section (3) shall apply to any award which by its nature, terms or other circumstances does not impose, after it has been given effect to, any continuing obligation on the parties bound by the award.
(6) Notwithstanding the expiry of the period of operation Under sub section (3), the award shall continue to be binding, on the parties until a period of two months has elapsed from the date on which notice is given by any party bound by the award to the other party or parties intimating its intention to terminate the award.
338 (7) No notice given under sub section (2) or sub section (6) shall have effect, unless it is given by a party representing the majority of persons bound by the settlement or award, as the case may be.
" There is no dispute that the order on the earlier Refer ence was made by the Labour Court on 27 9 1972, while the second Reference with the same terms of Reference to that Court was made by the Government on 2.5.1973, i.e., within one year of the earlier order.
It is common ground that the period of one year for which an award normally remains in operation under sub section
(3) was not reduced or curtailed by the Government under sec.
19 or under any other provision of the Act.
It is further admitted between the parties that no notice was given by any party of its intention to terminate the Order dated 27.9.1972.
The controversy with regard to the first point there fore narrows down into the issues whether the determination dated 27.9.1972, of the Labour Court was an award as defined in section 2(b) of the Act? The definition of award in section 2(b) falls in two parts.
The first part covers a determination, final or interim, of any industrial dispute.
The second part takes in a determi nation of any question relating to an industrial dispute.
But the basic postulate common to both the parts of the definition, is the existence of an industrial dispute, actual or apprehended.
The "determination" contemplated by the definition is of the industrial dispute or a question relating thereto, on merits.
It is to be noted further that Sec. 2, itself, expressly makes the definition subject to "anything repugnant in the subject or context".
We have therefore to consider this definition in the context of sec.
19 and other related provisions of the Act.
Mr. Pai concedes that the order dated 27.9.1972, is not a determination of any industrial dispute, as such, falling under the first part of the definition.
However, Iris argument is that the expression any question relating there to" in the second part of the definition is of wide ampli tude and should be spaciously construed.
It is main tained that a question, whether or not an industrial dispute exists, will itself be a question relating to an industrial dispute within the tendment of the second part of the defi nition.
The contention appears to be attractive but does not stand a close examination.
Sub section (1) of sec.
10 indicates when and what matters can be referred to the Labour Court for adjudica tion.
The sub section expressly makes formation of opinion by the appropriate Government, that any industrial dispute exists or is apprehended" a condition precedent to the exercise of the power of making a Reference.
Subsection (4) gives a mandate to the Labour Court to confine its adjudication to those points of dispute which have been specified in the Order of Reference, or are incidental thereto.
From a conjoint reading of cl.(b) of section 2 and sub section (1) and (4) of sec.
10, it is 339 clear that in order to be an `award ' within the second part of the definition, a determination must be (i) an adjudica tion of a question or point relating to an industrial dis pute, which has been specified in the Order of Reference or is incidental thereto: and (ii) such adjudication must be one on merits.
Now let us test the Labour Court 's order, dated 27.9.72 in the light of the above enunciation.
That Order did not satisfy any of the criteria indicated above.
It did not determine the questions or points specified in the Govern ment Order of Reference.
Nor was it an adjudication on merits of any industrial dispute or a question relating thereto.
The only question determined by the Order, dated 27.9.1972, was about the existence of a preliminary fact, viz., existence of an industrial dispute which in the Labour Court 's opinion was a sine qua non for the validity of the Reference and the exercise of further jurisdiction by the Court.
Rightly or wrongly, the Court found that this preliminary jurisdictional fact did not exist, because "no industrial dispute had come into existence in accordance with law", and, in consequence, the Reference was invalid and the Court was not competent to enter upon the Reference and determine the matter referred to it.
With this find ing, the Court refused to go into the merits of the question referred to it.
There was no determination on merits of an industrial dispute or a question relating thereto.
We are therefore of opinion that Labour Court 's determination dated 27.9.1972, did not possess the attributes essential to bring it within the definition of an award.
The mere fact that this order was published by the Government under section 17(1) of the Act did not confer that status on it.
In the view we take we are fortified by the principle laid down by this Court in Technological Institute of Tex tiles vs Its Workmen (supra).
In that case, there was a settlement which in the absence of necessary formalities, was not binding on the parties.
Certain items of dispute were not pressed and withdrawn under the terms of such settlement.
In the subsequent reference before the Indus trial Tribunal some of the items of dispute were withdrawn and no award was made in respect thereto.
Thereafter, these items were again referred for adjudication along with cer tain other matters to the Tribunal.
It was contended on behalf of the Management that subsequent reference with regard to the items which had been withdrawn and not pressed in the earlier reference, was barred under sec.
19, because the earlier award had not been terminated in full.
Ramaswa mi J., speaking for the Court, repelled this contention, with these observations: "It is manifest in the present case that there has been no adjudication on merits by the industrial tribunal in the previous reference with regard to the matters covered by items (1) and (3) of the present reference, because the workmen had withdrawn those mat ters from the purview of the dispute.
There was also no settlement in exhibit R. 4, because the demands in question had been withdrawn by the workmen and there was no agreement between the parties 340 in regard thereto.
Our conclusion, therefore, is that the bar of section 19 of the does not operate with regard to the matters covered by items (1) and (3) of the present reference and the argument put forward by the appellant on this aspect of the case must be rejected." Although the facts of the case before us are different, yet the principle enunciated therein viz., that the bar of sec.
19 operates only with regard to a determination made on merits, is fully applicable.
By any reckoning, the decision dated 27.9.1972 of the Labour Court by its very nature did not impose any continuing obligation on the parties bound by it.
This was an additional reason for holding that the earlier reference was not barred by anything contained in sub section (3) or other provisions of section 19.
We have gone through the single Bench decision of the Allahabad High Court in Workmen of Swadeshi Cotton Mills Co. Ltd. case (supra).
That decision is to the effect that the finding recorded by the Labour Court that the matter re ferred to it for adjudication was not an industrial dispute as defined in the Act is itself a determination of a ques tion relating to an industrial dispute, and would fall within the definition of the term "award" under the Act.
In our opinion.
this is not a correct statement of the law on the point.
The next submission of Mr. Pai is that since the demand for reinstatement was not duly made by the workmen before 28.10.
1972, the Courts below were not justified in award ing to the workmen, compensation for back wages from 1966 onwards.
On the other hand, Mr. Ramamurthi maintains that such a claim was presumably agitated by the workmen in proceedings before the Conciliation Officer, in 1966.
While conceding that technically, no demand notice for reinstatement was served by the workmen on the Management before 25.10.
1972, Counsel submits that the Management were aware of the work men 's claim to reinstatement, since 1966, and in these circumstances, the Management should not be allowed to take shelter behind this technical flaw, and deny just compensa tion to them from the date of wrongful dismissal.
We have carefully considered the contentions advanced on both sides.
After taking into consideration all the circum stances of the case, we are of opinion that the Labour Court was not justified in awarding compensation to the workmen, for wages relating to the period prior to 25.10.1972 i.e., the date on which the demand notices for reinstatement were served on the Management.
To this ex tent, we would accept the contention of the appellants.
341 The third contention of the appellants is that the onus of proving that they had not obtained alternative employment elsewhere after the termination of their services, was on the workmen, and they had failed to discharge that onus.
We find no merit in this contention.
The question of onus oft loses its importance when both the parties adduce whatever evidence they had to produce.
In the instant case, both the parties led their evidence and closed their respective cases.
Subsequently, at a late stage, the Management made an application for adducing additional evidence.
The Labour Court declined theft appli cation.
The High Court found and we think rightly, no good reason to interfere with the discretion of the Labour Court.
It may be remembered further, that this appeal arises out of a petition under article 226 of the Constitution, and in the exercise of that special jurisdiction, the High Court does not reopen a finding of fact based on legal evidence.
The findings of the Labour Court to the effect, that after their dismissal, Ram Swamp Gupta was unable to find any alternative employment elsewhere, while Rawat was able to find only intermittent employment elsewhere, were based on evidence produced by the parties.
The High Court was there fore right in not interfering with those findings of fact.
Lastly it was urged by Mr. Pai, that the employers had lost confidence in the employees, and therefore, compensa tion, without reinstatement, would have been adequate re lief.
It is submitted that the business of the employers is that of Travel Agents and such a sensitive business can be successfully carried on only with the aid of employees whose fidelity and integrity is beyond doubt.
It is stressed that the employees of the appellants, have to handle daily lot of cash received from their clients in the discharge of their duties.
It is pointed out that the charge against H.S. Rawat was one of misappropriation of such funds and this charge was established in the domestic enquiry.
The Labour Court, proceeds the argument, did not displace that finding of the domestic Tribunal, but ignored it on the ground that the charge was stale and had been condoned.
In short, the argument is that the employers had lost confidence in this employee who could no longer be entrusted to perform sensitive jobs on behalf of the Management, without detriment to its business.
We are unable to accept this contention.
Firstly, this point was not argued before the High Court.
Secondly, the observations of the Labour Court, read as a whole, show that, in its opinion, the charge of misap propriation of funds had not been proved against H.S. Rawat.
This is what the Labour Court said on the point: "I am therefore of opinion that the charges had been condoned and they could not be revived again and the act of reviving the charge on account of his Union activities was an act of unfair labour practice on the part of the Management and amounted to victimisation.
Even the 342 charges in the charge sheet exhibit M/5 have not been established before me, that the workman withdrew the funds from the company on false pretences for revenue stamps and misappropri ated the same.
" Thus there is no factual basis for this belated conten tion, and we repel the same.
For the foregoing reasons, we dismiss this appeal with the modification that in addition to the relief of rein statement with continuity of service, S/Shri H.S. Rawat and Ram Swarup Gupta shall be entitled to 50%, and full back wages, respectively, from 25.10.1972.
It may be recalled that the special leave to appeal in this case, was granted on the condition that the appellants shall pay the costs of this appeal to the respondents, in any event.
We order accordingly.
P.B.R. Appeal dismissed.
[/INST]The respondents in all these appeals are "extra depart mental agents" within the meaning of Rule 2(b) of the Posts and Telegraphs Extra Departmental Agents (Conduct of Service) Rules, 1964 issued under the authority of the Government of India.
They were either dismissed or removed from service during the period between January 1, 1966 and June 18, 1974, admittedly without complying with the provi sions of article 311(2) of the Constitution.
The question in each case is whether the respondent held a "civil post" as contemplated in article 311(2) of the Constitution.
The High Court of Kerala, Andhra Pradesh & Orissa held that the respondents held a civil post under the Union of India and the orders terminating their services in violation of article 31.1(2) of the Constitution were invalid.
Dismissing the appeals the Court, HELD: (1) An "extra departmental agent" held a "civil post" and his dismissal or removal would be invalid, if there was non compliance with article 311 (2) of the Constitu tion.
[680 B C. 682 E] (2) An extra departmental agent is not a casual worker, but he holds a post under the administrative control of the State.
It is apparent from the 1964 Rules that the em ployment of an extra departmental agent is in a post which exists "apart from" the person who happens to fill it at any particular time.
Though such a post is outside the regular civil service, there is no doubt it is a post under the State.
[681 E F] State of Assam & Ors.
vs Kanak Chandra Dutta ; @ 682 applied.
(3) The 1964 rules make it clear that these extra departmental agents work under the direct control and super vision of the authority who obviously have the right to control the manner in which they must carry out their du ties.
There can be no doubt, therefore, that the relation ship between the Postal Authorities and the extra departmen tal agents are of master and servant.
[662 C E] Venkataswamy vs Superintendent, Post Offices, AIR 1957 Orissa 112; V. Subbaravalu vs Superintendent of Post Offices, AIR 1961 Madras 166, held inapplicable.
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<s>[INST] Summarize the judgementCivil Appeal No. 19 of 1954.
Appeal from the judgment and decree dated April 8, 1949 of the Patna High Court, in Appeal from Original ]Decree No. 116 of 1947, arising out of the judgment and decree dated the February 28, 1947, of the Sub Judge at Begusarai in Title Suit No. 14/14 of 1944/45.
L. K. Jha and B. K. Sinha, for the appellant.
G. section Pathak, B. Sen, B. K. Saran and R. C. Prasad, for respondent No. 1. section D. Sekhri, for respondents Nos. 3 and 4. 1959.
September 7.
The Judgment of the Court was delivered by DAS GUPTA J.
Though a member of questions, some of fact and some of law were originally raised in this suit for pre emption, the main question for consideration in this appeal from the judgment of the 665 High Court of Patna, reversing the decree for preemption granted by the Trial Court, the Subordinate Judge of Monghyr, is the question on which the High Court based its decision of reversal.
That question is whether the ceremonies essential for exercising the right of pre emption were properly performed.
Issue No. 9 in which this question was raised is in these words: " Did the plaintiff perform the ceremonies of Talab E Mowasibat and Talab E Ishtashad as required by law ?" The plaintiff Radha Prasad Singh brought this suit for pre emption in respect of 5 items of property described in Schedule B of the plaint which along with certain other properties were sold by the Defendant 2nd Party Mst.
Jogeshwari Kumari alias Jageshwari Kumari widow of Babu Ganga Prasad Singh deceased and daughter of Babu Narsingh Prasad Singh by a deed executed on November 18, 1943, at Moghra and registered on November 23, 1943, at Monghyr.
The Trial Court held that the plaintiff had failed to prove that he was a co sharer in respect of Item 2 of Schedule B. As regards the other 4 Items of properties he held that the plaintiff was a co sharer and as already indicated he gave the plaintiff a decree for pre emption in respect of these 4 Items.
The sale deed is in favour of the defendant first party, Gajadhar Singh.
It is no longer disputed, however, that Gajadhar Singh was a mere Benamidar and the real purchaser by this deed was Babu Lakshmi Prasad Singh, his son Satya Narayan Singh and others.
A dispute was raised as to whether 4 annas 5 gandas odd share of Mauza, Majhaul Kilan Shri Ram, was sold or the entire 8 annas odd share of the vendor was sold.
It has been held by both the Courts below that the plaintiff 's original case that the 4 annas 5 gandas odd share of Majhaul Kilan Shri Ram was sold is not correct and that really 8 annas odd share, the entire interest of the vendor in this property was sold by the deed, but that after the registration of the sale deed it was tampered with and by an act of forgery the 666 8 annas odd share was altered fraudulently to 4 annas 5 gandas.
It was after the defendant 's pleading in the written statement that 8 annas odd gandas of this Mauza was sold and not 4 annas odd gandas as mentioned in Schedule B, that the plaintiff prayed for and obtained an amendment of the plaint by which an alternative prayer for pre emption in respect of 8 annas odd share of this Mauza was made.
But for this amendment it is obvious the prayer for pre emption could not be granted as being only for a partial pre emption, once it has been found that 8 annas odd gandas were sold and not 4 annas odd gandas.
One question which was therefore raised whether the amendment was rightly granted by the Trial Court.
The question that the suit as brought was for partial pre emption was also raised from another aspect, viz., that though the sale of this Mauza, Majhaul Kilan Shri Ram, was of all villages Asli Mai Dakhili, i.e., original with dependencies, there is no prayer for pre emption in this suit in respect of Dakhili villages.
As already indicated, however, the main question in controversy was whether the essential ceremonies required in law, i.e., Talab E Mowasibat and Talab E Ishtashad, were performed in accordance with law.
A regards this the plaintiff 's case is that he came to know of this sale by his co sharer Jogeshwari for the first time on January 2, 1944, at about 11 a.m. when Jadunath Singh, a resident of Majhaul, informed him of this and that he at once completed the formality of Talab E Mowasibat in the presence of some persons and that shortly after this he went to the properties of Tauzis 1130, 4201, and 1136, and also Mauza Bugurgabad and performed Talab E Ishtashad, that he went then to the residence of the purchaser Gajadhar Singh at Matihani on January 3, 1944, and again performed the Talab E Ishtashad ; and that very day he started for the residence of the vendor and performed the Talab E Ishtashad there on January 4, 1944.
The defence was that the story of any such ceremonies having been performed is wholly untrue and that, in fact, the plaintiff had knowledge of the sale 667 from long before January 2, 1944, he having been a rival bidder for the purchase of those very properties.
A detailed story of a proclamation by beat of drums of the proposed sale by Bindeshwary and the plaintiff 's attempt to secure the property at the sale was set out by the defendant in the written statement and was sought to be proved by his witnesses.
The Trial Court disbelieved the. defendant 's story on this point.
He also rejected the defence allegation that the plaintiff was himself responsible for the forgery that was committed in respect of the deed of sale by altering the statement of the share in Majhaul Kilan Shri Ram that was sold, from 8 annas odd gandas to 4 annas odd gondas.
On these findings he held the plaintiff 's suit was not barred by estoppel.
Proceeding then to the consideration of the question whether the plaintiff 'came to know of the sale in favour of the first defendant for the first time on January 2, 1944, from Jadunath as alleged, the learned Judge has accepted the evidence given by the plaintiff and Jadunath on this point and held that the plaintiff 's case that he received information for the first time on that day was true.
He also accepted the evidence of the plaintiff as regards the requisite ceremonies having been duly performed.
The very important question that arose for the decision of the Court was whether the plaintiff 's story that he came, to know of the sale for the first time from Jadunath on January 2. 1944, is true.
The Trial Court held that it was true.
On this point the High Court came to a, contrary conclusion.
The learned judges of the High Court were of opinion that the evidence of witness Jadunath was wholly unacceptable and that the plaintiff 's evidence that he came to know of the alleged sale on January 2, 1944, could not be accepted.
After pointing out that the whole basis of the plaintiffs claim that he performed 'the ceremonies of Talab E Mowashibat and Talab E Ishtashad was without substance, they examined the evidence as regards the performance of the ceremonies and held that this evidence was also not acceptable, 668 The question in dispute before us is thus a pure question of fact, viz., whether the plaintiff came to know of the sale for the first time on January 2, 1944, and thereupon performed the ceremonies of Talab E Mowasibat and Talab E Ishtashad.
The main contention raised by Mr. Jha, who appeared in support of the appeal is that in considering this question of fact the High Court approached the question from a wrong point altogether and was not justified in reversing the judgment of the Trial Court on that point.
The question as to what should be the right approach for a Court of Appeal in deciding a question of fact already decided in one way by the Judge in the Court of the first instance has often engaged the attention of the courts, though the views expressed have not been uniform.
Emphasis has been laid in some cases on the importance of the Court of Appeal deciding for itself the question of fact when the appeal is on facts, though remembering that it should not lightly do so not having had the advantage which the Trial Judge had of seeing the witnesses.
, More emphasis has been laid in other cases on the importance of not reversing the Trial Judge 's findings of fact without compelling reasons.
All the Courts in all the cases have stressed the rule which the courts of appeal should observe for themselves: that a Judge sitting on appeal not having had the opportunity of seeing and hearing the witnesses should think twice and more than twice before reversing the findings of fact arrived at by the Trial Court who has had that opportunity.
To say that however is not to say that the Court of Appeal will never reverse a finding of fact of the Trial Court.
In Shunmugaroya Mudaliar vs Manikka Uudaliar (1), Lord Collins pointed out that: "It is always difficult for judges who have not seen and heard the witnesses to refuse to adopt the conclusions of fact of those who have; but that difficulty is greatly aggravated where the Judge who heard them has formed the opinion, not only that their inferences are unsound on the balance (1) (1909) L.R. 36 I.A. 185.
669 of probability against their story, but they are not witnesses of truth.
" In the same judgment Lord Collins referred approvingly to the judgment delivered by Lindley, Master of the Rolls, in the Court of Appeal in the case of Coghlan vs Cumberland (1) which set out the limitations of the rule : " even where the appeal turns on a question of fact, the Court of appeal has to bear in mind that its duty is to rehear the case, and the Court must reconsider the materials before the Judge with such other materials as it may have decided to admit.
The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the Court comes to the conclusion that the judgment is wrong.
When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross examined before the Judge, the Court is sensible of the great advantage he has had in seeing and hearing them.
It is often very difficult ' to estimate correctly the relative credibility of witnesses from written depositions and when the question arises which witness is to be believed rather than another; and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the Judge who saw the witnesses.
But there may obviously be other circumstances, quite apart from manner and demeanour, Which may shew whether a statement is credible or notand these circumstances may warrant the Courtin differing from the Judge, even on a question offact turning on the credibility of witnesses whom the Court has not seen.
" Almost the same view was expressed by Lord Thankerton in Watt (or Thomas) vs Thomas (2 ) : " I. Where a question of the fact has been tried by a Judge without a jury and there is no question if misdirection of himself by the Judge, an appellate (1)(1898) 1 Ch. 704.
(2) (1947) I All E.R. 582.
85 670 court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the Trial Judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge 's conclusions.
The appellate Court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.
The appellate Court, either because the reasons given by the Trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court.
It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individiual case in question.
" These observations were cited with approval by Lord Reid in Bonmax vs Austin Motor Co., Ltd., (1).
(See also the observations of Mokerjee, J., in Laljee Mahomed vs Girlder (2).
This question of the proper approach of the Court of Appeal to decisions on questions of fact arrived at by the Trial Court was considered by this Court in Sarju Pershad vs Raja Jwaleshwari Pratap Narain Singh(3).
Mukherjea, J., while delivering the judgment of the Court observed: " In such cases, the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and observing the manner in which they deposed in Court.
This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial judge.
The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of (1) (1955) I All E.R. 326.
(2) Cal.
(3) [1950]S.C.R.781,784.
671 the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial judge 's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact.
" The position in law, in our opinion, is that when an appeal lies on facts it is the right and the duty of the Appeal Court to consider what its decision on the question of facts should be; but in coming to its own decision it should bear in mind that it is looking at the printed record and has not the opportunity of seeing the witnesses and that it should not lightly reject the Trial Judge 's conclusion that the evidence of a particular witness should be believed or should not be believed particularly when such conclusion is based on the observation of the demeanour of the witness in Court.
But, this does not mean that merely because an appeal court has not heard or seen the witness it will in no case reverse the findings of a Trial Judge even on the question of credibility, if such question depends on a fair consideration of matters on record.
When it appears to the Appeal Court that important considerations bearing on the question of credibility have not been taken into account or properly weighed by the Trial Judge and such considerations including the question of probability of the story given by the witnesses clearly indicate that the view taken by the Trial Judge is wrong, the Appeal Court should have no hesitation in reversing the findings of the Trial Judge on such questions.
Where the question is not of credibility based entirely on the demeanour of witnesses observed in Court but a question of inference of one fact from proved primary facts the Court of Appeal is in as good a position as the Trial Judge and is free to reverse the findings if it thinks that the inference made by the Trial Judge is not justified.
Turning now to the instant case we find that the Trial Judge having seen and heard Jadunath and the plaintiff, believed their evidence on the point of information being given to plaintiff by Jadunath about the 672 sale on January 2, 1944, at about II a.m.
It does not, however, appear that the learned Trial Judge arrived at his conclusion on the basis of the demeanour of these witnesses having created a favourable impression on his mind as to their credibility.
In scrutinising the evidence of the plaintiff and of Jadunath it must be borne in mind that the case of the plaintiff is that on January 2, 1944, certain information having been received by him, he performed the formalities.
There is no case that the formalities were performed on any other date.
Therefore, if the story of the communication of information on January 2, 1944, is not established then the whole case of the plaintiff must fail.
Jadunath 's evidence on this point was: " On 2 1 44 I told Radha Babu at his house in Manjhaul that Maghrawalli Jugeshwari Kumari had sold away her Milkiat to Gajadhar Rai of Matihani, this was about 11 a.m. Radha was startled to hear this and standing up said: "Jo jo jaidad Babu Gajadhar Singh hath (then says Maghrawalli Mussammat Jageshwari Kumari ne jo jo jaidad Babu Gajadhar Singh ka liath becha hai uske kharidne ka haq mere.
Ham Kharida, Ham Kharida, Ham Kharida.
Talab Mowashibat karte hain.
Babu Jagdamba Prasad aur Babu Narayan Prasad gabah rahie.
I came to know from a man of Chitral, I kos from Matihani that gajadhar had a marriageable grandson.".
Mention should be made in this connection also of the evidence of Jagdambi Prasad: "On 2 1 44 I had been to plaintiff 's house at 10 30 a.m.
Babu Narayan Prasad Singh, a pleader of Samastilpur was at plaintiff 's house at the time .
Jadunath Singh told Radha Prasad that Musanimat Jagesliwari Kumari of Maghra had sold away her property in Manjhaul to Gajadhar Singh of Matihani.
As soon as Jadunath Singh said this Radha Prasad Singh was startled, stood up and said: I have a right to purchase this property.
I have purchased; I have purchased; I have purchased.
673 You Jagdamba Prasad Singh, you Narayan Prasad Singh and you Jadunath Singh, bear witness to this fact.
He uttered these words thrice." In deciding the question whether the information from Jadunath was the first information received by the plaintiff the Trial Judge had necessarily to consider whether the story that Jadunath came to know of the sale and brought this information on to the plaintiff on January 2, 1944, at about 11 a.m. was true or not.
In arriving at a decision on the point it was necessary for him to consider the probabilities of the story, of Jadunath having gone to Gajadhar 's house in search of a bridegroom and that there Gajadhar Singh informed him of the sale and then of the probability of the story that he would be taking upon himself the task of going to the plaintiffs house immediately on return to his village to convey this information, the probability of the story as to how the plaintiff reacted to the account and also the question of discrepancy.
It does not appear that the learned Trial Judge took any of these matters into consideration.
All that he says about Jadunath 's credibility is that his evidence had been criticised on the ground that he was one of plaintiff 's witnesses in the previous suit brought by him against Satya Narain Singh 's ancestors and that is in his opinion was not a valid ground for discarding the evidence of Jadunath Singh.
We agree with the learned Judge that the mere fact that Jadunath was one of the plaintiff 's witnesses in the previous suit brought by him against Satya Narain Singh 's ancestors about 33 years ago would not by itself be a valid reason for discarding his testimony.
The fact that this was not a valid reason for discarding his testimony does not, however, absolve the Court of the duty of testing the witness 's testimony on the touch stone of probability.
The learned judges of the High Court applied that touch stone and came to the conclusion that Jadunath was not a witness of truth.
It is clearly a case where the words used by Lord Thankerton that the Trial Judge had not taken proper advantage of his having seen and heard the witnesses, and the matter would become at large for the appellate 674 court, should apply.
Here was a witness who could not be considered to be wholly independent.
For, on his own showing he took the trouble of going to plaintiff 's house after what may be taken to be an arduous country in an unsuccessful search for a bridegroom, to inform the plaintiff of a matter in which he himself had no interest a witness who had figured, though many years ago, in a pre emption suit brought by the same person.
These facts made close scrutiny of the witness 's account necessary before the Judge could say just by looking at him that he was a witness of truth.
That scrutiny is conspicuous by its absence.
Taking his evidence as a whole we find that his story that after coming to know of the sale in question he went to the house of Gajadhar, the first defendant, at village Matihani to make enquiries about a marriage proposal in respect of his daughter with his grandson and that it was in that connection that Gajadhar spoke to him about his purchase.
But it is curious that in his examination in chief this witness came straight to his account of 'coming to the plaintiff 's house on January 2, 1944, and informing him about the sale by Jogeshwari of her Milkiat to Gajadhar without saying a word as to his visit to Gajadhar 's house, to the purpose of his visit and the manner in which Gajadhar gave him the information, or even the detailed nature of the information.
It was in cross examination that he disclosed that he went to Gajadhar 's house for "barthuari".
It is in vain that we look into his evidence, whether in examination in chief or in cross examination, for the exact information given by Gajadhar.
It has to be remembered in this connection that it is no longer disputed that Gajadhar himself had no interest in these properties and was a mere Benamidar.
Even if Gajadhar 's own account that he was completely in the dark about these transactions be left out of account it was necessary for the Court to consider how far it was probable that Gajadhar would put on Jadunath a false story of purchase by himself of properties.
It was urged that this Gajadhar did with a view to raise the Tilak which he could thus obtain.
675 Jadunath himself has not said anything about the negotiations about Tilak but one Mahabir Ray has said that when he was going to the fields Gajadhar called him and there lie heard Gajadhar demanding a higher Tilak stating that he had recently purchased properties at Majhaul from Mussammat.
Jadunath himself does not mention having seen this Mahabir at Gajadhar 's house.
Jadunath claims to have gone to his house with a servant.
Mahabir has not mentioned the presence of this servant.
The question whether a man like Mahabir who was a total stranger to the plaintiff would be called by Gajadhar to hear such talks also requires the serious consideration of the Court.
The Trial Judge does not appear to have given the slightest consideration to this aspect of the matter.
The learned judges of the High Court thought that there was no reason that Gajadhar would go out of his way to convey the information to Jadunath that he had purchased the Milkiat of Jogeshwari, the defendant No. 2.
It is difficult not to agree to this estimate of probability.
Even more important was the question of probability as regards the story of the plaintiff 's reaction when the information is said to have been given to him.
Both Jadunath and Jagdambi say that the plaintiff was startled on getting information of the sale and at once uttered the words which have been set out already of the Talab E Mowsibat.
What would a man of ordinary prudence not to speak of the man of property and with experience of previous litigation like the plaintiff would do under such circumstances ? There cannot be any two opinions on this question.
He may consider it unwise to ask his informant any further question before making the first Talab, i.e., Talab E Mowasibat.
Once that was completed he would ply his informant with questions as to where he got this information, what the information exactly was, what properties had been sold, what the consideration was, and other connected questions.
In this case, according to the evidence of Jadunath no such questions were asked by the plaintiff.
In his examination in chief, Jadunath says: 676 " He (plaintiff) asked his syce to bring his tandom.
He told Jagdamba Babu that he would go to make talab e isthashad and asked him to accompany him.
While they were boarding the tandom Jai Prakash Narayan came that way.
Radha Babu asked him also to accompany him.
The same night Radha Babu met us at my house at 8 p.m.
He asked me where I had obtained the information about the sale.
" From this evidence it is clear that though Jadunath was at the place until the Tandom bad been brought and the plaintiff and Jagdamba got into the Tandom and Jai Prakash Narayan also arrived, no question was put by the plaintiff to Jadunath in this behalf.
It has to be noted that the plaintiff went to Jadunath 's house the same night at 8 p.m. and the only question which was asked was: Where he had obtained the information about the sale and nothing was asked about what properties had been sold or for how much had they been sold.
In cross examination Jadunath made the further statement in these words: " When I broke the news Radha Prasad did not ask me where I had received the information, or who had purchased the properties; what properties had been purchased or what the consideration was.
" Such conduct on the part of Jadunath is incredible and any Judge of facts with experience of normal human conduct could have no hesitation in coming to the conclusion that things could not have happened in the way Jadunath has described.
Mr. Jha, the learned Counsel for the appellant, urged that it would be unfair to base any conclusion on the supposed improbability or unnaturalness of such silence on the part of the plaintiff without having given him an opportunity to explain why be acted in this peculiar manner.
It has to be noticed, however, that Jadunath had been examined and cross examined on January 9, 1947, and when the plaintiff was put in the Witness Box on the following day, i.e., January 10, 1947, the lawyer who examined him had before him the fact that Jadunath 's evidence had brought out this strange silence on the part of the plaintiff after he had been informed of the 677 sale.
It was his duty to obtain from Radha Prasad an explanation of such conduct.
But he put no questions to Radha Prasad about this.
The obvious reason is that Radha Prasad had no explanation to offer and the lawyer knowing this kept quiet.
It appears to us that the learned judges of the High Court of Patna were right in attaching great importance to this conduct of the plaintiff and were justified when they thought that this was an improbable story and rejected, in disagreement with the Trial Judge Jadunath 's evidence altogether.
Mention has to be made of another circumstance which was noticed in the High Court judgment.
That is as regards the exact information which is said to have been given by Jadunath.
Jadunath 's own account in the examination in chief is that he "told Radha Babu at his house in Majhaul that Maghrawalli Jugeshwari Kumari had sold away her Milkiat to Gajadhar Rai of Motihani.
In his cross examination he first said : " The information I gave was in these terms: Maghrawali Musammat apni Jaidad Babu Gajadhar Singh Motihani wale ke chan bech dia." and then correcting himself said: " Babu Gajadhar Singh ne kaha ki Maghrawali Musammat ki jaidad kharid kia.
" It is not possible for anybody to remember exactly the words used by himself many years ago and it is reasonable to say that there was no substantial difference between the account given by him of this matter in his examination in chief and in cross examination.
It is interesting to remember, however, that in paragraph 4 of the plaint, it was stated that the information that Jadunath gave was: " That the defendants 2nd and 3rd parties had sold the properties entered in Schedule B of this plaint, along with other properties to the defendant 1st party, under a registered deed of sale.
" According to Jadunath 's evidence he does not appear to have mentioned the defendant 3rd parties as the sellers nor gave any details to show that the properties 86 678 entered in Schedule B were covered by the sale nor that there was a registered deed of sale.
Turning to the evidence on the plaintiff and Jagdamba as regards the information said to have been given by Jadunath we find that Jagdamba says: " Jadunath Singh told Radha Prasad that Musammat Jogeshwari Kumari of Maghra had sold away her property in Majhaul to Gajadhar Singh of Motihani.
" According to the plaintiff himself the information which Jadunath gave was that Gajadhar Singh had purchased the Majhaul properties from the Maghrawali Musammat.
An examination of Schedule B shows that while the first 3 items were properties in Mauza Majhaul, the 4th item is a property in Buzurgabad while the 5th item is a property in Mauza Dundit.
There appears to be no reason to think that these properties 4 and 5 could be even loosely be considered to be properties in Majhaul or Majhaul Properties.
Commenting on Jagdamba 's evidence on this point Mr. Justice Sinha, who delivered the leading judgment stated : " Plaintiff 's witness No. 2 has stated that Jadunath told the plaintiff that the second defendant had sold her property in Majhaul to the first defendant.
If that is so, it is a little difficult to under.
stand how they went to Bugurgabad or to the other items of property to perform the ceremonies, if they ever did so.
" It is strange that there should be such discrepancy between the evidence of Jadunath himself and the plaintiff and Jagdamba as to what actually was said.
But if Jagdamba 's account such as is supported by the plaintiff himself, is true then there is no acceptable explanation as to why the plaintiff could think of going to Bugurgabad at all as he and his witnesses say, he did.
It was the duty of the Trial Judge to take into account these several considerations in testing the credibility of the account given by Jadunath, the plaintiff and Jagdambi that Jadunath informed the plaintiff on January 2, 1944 about the sale.
He did not do so, The learned judges of the High Court as a 679 Court of Appeal were in duty bound to consider these questions before accepting the decision of the learned Trial Judge.
The criticism that the approach of the learned judges of the High Court was wrong is therefore wholly without foundation.
The learned judges of the High Court rightly took these matters into consideration and the decision they arrived at on these considerations that the Trial Judge 's assessment of the evidence was wrong and that Jadunath was not a witness of truth and that the account given by the plaintiff that the information was conveyed to him by Jadunath on January 2, 1944, should not be accepted is clearly right.
Once this decision is reached it is unnecessary to consider the further question whether any ceremonies were performed at all on 2nd, 3rd or 4th January, 1944, as stated by the plaintiff and his witnesses.
Even if they were, they would be of no assistance to the plaintiff as the plaintiff had failed to show that it was on January 2, 1944, that he received the information about the same.
It is unnecessary for us therefore to decide the further question that appears to have been raised, viz., that even if the evidence as regards the performance of the two Talabs i. e., Talab E Mowashibat and Talab E Ishtashad is accepted at its face value the requirements of the law have not been fulfilled.
The High Court held that the plaintiff had failed to prove that the words used by him at the time of the making of the second demand of Talab E Ishtashad were sufficient to draw the attention of the witnesses to the specific properties in respect of which he was demanding his right of pre emption.
We express no opinion whether this view of the learned judges of the High Court is correct or not.
We also express no opinion on the two other questions, viz., whether the Trial Court acted in accordance with law in granting leave to the plaintiff to amend his plaint so as to include the alternative prayer for pre emption in respect of 8 annas odd share of Tauza No. 1130 instead of 4 annas odd share as originally claimed and also whether the suit was bound.
to fail because there was 680 no prayer for pre emption for the Dakhili villages of Tauza No. 1130.
In our opinion the plaintiff having failed to prove that the information of the sale was conveyed.
to him by Jadunath on January 2, 1944, the suit 'was rightly dismissed by the High Court.
This appeal is, therefore, also dismissed with costs.
[/INST]A complaint was filed against seven persons under SS. 409, 465, 467, 471 and 477A of the Indian Penal Code.
After examining the complainant summonses were issued to the accused to answer a charge under section 406. 'The trial started as in a warrant case; prosecution witnesses were examined and cross examined and the statements of the accused were recorded, and the Magistrate heard arguments on the question of framing charges.
Thereafter, he framed charges under SS. 409 and 465 read with SS. 471 and 477A, and without giving previous intimation of his intention to do so, passed an order committing the appellants to the Court of Sessions.
The appellants, contended that the commitment was illegal because the case having begun as a warrant case it was incumbent upon the Magistrate, when he decided to commit the case to the Court of Session, to follow the procedure provided in Ch.
XVIII Code of Criminal Procedure, but he failed to comply with the provisions of SS. 208 to 213 of.
737 that Chapter.
The complainant urged that even if the provi sions of SS. 208 to 213 had not been complied with no prejudice was caused to the appellants and the commitment could not be( quashed.
Held, that the commitment order was illegal as the Magistrate had failed to comply with the provisions of section 208 of the Code of Criminal Procedure.
The proceedings having begun as in a warrant case, if the Magistrate, at a subsequent stage, was of the view that the case should be committed to the Court of Sessions, he had to act under section 347(1) of the Code and to follow the procedure prescribed for inquiries under Ch.
XVIII of the Code.
When, in the present case, the Magistrate decided to commit the case, he should have refrained from framing the charge and should have informed the accused of his intention to commit and should have called upon the accused to produce defence evidence, if any.
The failure of the Magistrate to intimate his decision to commit to the accused deprived them of the right to produce defence evidence, if any, under section 208.
The denial of this right was itself sufficient to cause prejudice to the accused and failure of justice inasmuch as the accused were prevented from leading evidence which might have induced the Magistrate not to frame the charge against them.
Subramania Iyer vs King Emperor, (1901) L.R. 28 I.A. 257 Pulukuri Kotayya vs King Emperor, (1948) L.R. 74 I.A. 65, and ' Narain Rao vs The State of Andhra Pradesh, , referred to.
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<s>[INST] Summarize the judgementAppeal No. 219 of 1954.
On appeal from the Judgment and Order dated the 4th day of April 1952 of the Madras High Court in Civil Miscellaneous Petition No. 8302 of 1950.
V. K. T. Chari, Advocate General of Madras (R. Ganapathy Iyer and P. G. Gokhale, with him) for the appellant.
R. Kesava lyengar, (M. section K. Iyengar, with him) for the respondent.
October 21.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
This appeal raises a question of considerable importance as to the rights of holders of darmila or post settlement inams of portions of a village under the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Madras Act XXVI of 1948), hereinafter referred to as the Act.
The subject matter of this appeal is an one sixteenth share in the village of Karuppur situated within the ambit of the Zamindari of Ramanatha puram.
The holders of this ancient Zamindari were, during the 18th Century, the virtual rulers of that part of South India, and were known as Sethupathis or the Lords of Rameswaram and the adjacent isles and seas.
In 1757 Muthu Vijaya Ragunatha, the then Rajah of Ramanathapuram, made a grant of the whole of the village of Karuppur to a number of persons for various charitable purposes.
In 1802, the estate was permanently settled, and an istimrari sanad was issued in favour of the Rajah.
Before that date, the donees under the grant of 1757 representing an one sixteenth share had abandoned the village, and in consequence, the inam had eo extanti been resumed.
At the permanent settlement, this one sixteenth part was included in the assets of the 909 Zamindari, and taken into account in fixing the peishkush thereon.
Subsequent to the permanent settlement, on some date which does not appear on the record, Rani Mangaleswari, the then holder of the Zamindari, made a fresh grant of the one sixteenth part which had been resumed, to the inamdars who held the remaining 15/16th portion of the village under the grant of 1757.
On 31 12 1863 the Inam Commissioner confirmed the grant of 1757, and issued an inam certificate in respect of the 15/16th portion of the village.
The position, therefore, when the Act was passed was that while a 15/16th portion was held by the inamdars under a pre settlement grant confirmed by the British Government, the remaining one sixteenth portion was held under post settlement grant made by the proprietor of the estate.
The Act came into force on 19 4 1949.
Under section 1(4) of the Act, certain sections thereof were to come into force at once and the other sections on such date as the Government might by notification appoint in respect of any zamindari, under tenure, or inam estate.
In exercise of the powers conferred by this section, the appellant issued a notification on 22 8 1949 bringing the Act into force as regards the Ramanathapuram estate from 7 9 1949.
Among the villages mentioned as comprised in the Zamindari was "Karuppur (part)" described as an under tenure.
It is common ground that the part referred to in this notification is the one sixteenth part, which forms the subject matter of this appeal.
The respondent who represents the holders of this inam filed the application out of which the present appeal arises, under article 226 of the Constitution for a writ of certiorari quashing the notification dated 22 8 1949 as ultra vires.
The ground of attack was that under section 1 (3) of the Act, the State had power to notify only what would be estates as defined in section 3(2) of the Madras Estates Land Act 1908 (Madras Act I of 1908), and that the part of the village of Karuppur included in the notification was not an estate as defined in that section.
Section 3(2) of Act I of 1908, so far as is material, is as follows; 910 "Estate" means (a) any permanently settled estate or temporarily settled zamindari; (b) any portion of such permanently settled estate or temporarily settled zamindari which is separately registered in the office of the Collector; (c) any unsettled palaiyam or jagir; (d) any inam village of which the grant has been made, confirmed or recognised by the British Government, notwithstanding that subsequent to the grant, the village has been partitioned among the grantees or the successors in title of the grantee or grantees.
* * * * (e) any portion consisting of one or more villages of any of the estates specified above in clauses.
(a), (b) and (c) which is held on a permanent under tenure".
The contention of the respondent was that as the grant in question related only to a fraction of a village, it could not be notified as an under tenure, as under section 3 (2) (e) an under tenure would be an estate only if it related to a whole village or villages.
The appellant conceded that the inam in question was not an under tenure as defined in section 3 (2) (e), as it comprised only part of a village, but contended that even though it was not in itself an estate, it was, nevertheless, part of the Zamindari of Ramanathapuram, being a post settlement grant of portion of a village comprised therein, and that when that estate was notified, the entirety of it including the inam in question must vest in the Government under section (b) of the Act.
The respondent demurred to this contention.
In addition, he raised the further contention that even if post settlement minor inams were within the operation of the Act, they would be protected by section 20 of the Act, which runs as follows: "20(1) In cases not governed by sections IS and 19, where, before the notified date, a landholder has created any right in any land (whether by way of lease or otherwise) including rights in any forest, 911 mines or minerals, quarries, fisheries or ferries, the transaction shall be deemed to be valid; and all rights and obligations arising thereunder, on or after the notified date, shall be enforceable by or against the Government: Provided that the transaction was not void or illegal under any law in force at the time: Provided further that any such right created on or after the 1st day of July 1945 shall not be enforceable against the Government, unless it was created for a period not exceeding one year: Provided also that where such right was created for a period exceeding one year, unless it relates to the private land of the landholder within the meaning of section 3, clause (10), of the Estates Land Act, the Government may, if, in their opinion, it is in the public interest to do so, by notice given to the person concerned, terminate the right with effect from such date as may be specified in the notice, not being earlier than three months from the date thereof".
The argument of the respondent was that a post settlement minor inam would be a right in land created by a landholder falling within section 20, that the notification of the estate under section 1(3) would not ipso facto divest the inamdar of his title to the lands, and that he would be entitled to hold them subject to any action that might properly be taken by the State under section 20.
The learned Judges of the Madras High Court agreed with the appellant that post settlement minor inams fell within the operation of the Act; but they accepted the contention of the respondent that they were governed by section 20 of the Act.
As it was common ground that the State had not proceeded under that section, they held that the notification was ultra vires, and accordingly quashed the same in so far as it related to the inam forming part of Ka ruppur village.
The appellant applied to the High Court for leave to appeal to this Court against this decision, and though the value of the subject matter was far below the appealable limit, the learned Judges granted a certificate under article 133(1)(c) on the 912 ground that the question involved was one of great public importance.
That is how the appeal comes before us.
Two questions arise for decision in this appeal: (1) Are post settlement minor inams within the operation of Madras Act XXVI of 1948? (2) If they are, are they governed by section 20 of the Act? On the first question, the appellant does not contend that the inam in question is in itself an estate as defined in section 3(2) of the Madras Estates Land Act and liable as such to be notified under the Act.
His contention is that when the Zamindari of Ramanathapuram was notified and there is no dispute that it was validly notified, as it was a permanently settled estate falling within section 3(2) (a) of the Madras Estates Land Act minor post settlement inams of lands within the Zamindari would vest in the State as part of the Zamindari under section 3(b) of the Act.
Section 3(b) is, omitting what is not material, as follows: "With effect on and from the notified date and save as otherwise expressly provided in this Act. . . . the entire estate.
shall stand transferred to the Government and vest in them, free of all encumbrances".
The point for decision is whether post settlement minor inams are parts of the estate out of which they were granted.
If they are, then they will vest in the Government under section 3(b).
If they are not, they will remain unaffected by the notification of the parent estate.
The status of holders of these inams had been the subject of considerable divergence of judicial opinion in the Madras High Court.
To appreciate this, reference must be made to the following definition of 'landholder ' in section 3(5) of the Madras Estates Land Act: "Landholder" means a person owning an estate or part thereof and includes every person entitled to collect the rents of the whole or any portion of the estate by virtue of any transfer from the owner or his predecessor in title or of any order of a competent 913 Court or of any provision of law".
Leaving out the inclusive portion of the definition as not relevant to the present question, it will be seen that owners of parts of an estate would also be landholders.
The question then arose for decision whether darmila minor inamdars were landholders as defined in section 3 (5) of the Estates Land Act.
If they were.
, the tenants would acquire occupancy rights under section 6, and proceedings against them could be taken only in the revenue courts and not in the civil courts, and in general, the rights and obligations of the inamdar and the tenants would be governed by the provisions of the Madras Estates Land Act.
One view was that as the inamdars had to pay quit rent or jodi to the grantors, their status could not be that of owners and therefore they could not be said to own parts of an estate.
The contrary view was that the inamdars were in substance owners of the lands granted to them, and that the liability to make a fixed annual payment did not detract from their character as owners, and they would be landholders owning parts of an estate.
In view of this conflict of opinion, the question was referred to the decision of a Full Bench in Brahmayya vs Achiraju(1), which held by a majority that minor darmila inamdars were landholders as defined in section 3(5) of the Estates Land Act.
This decision was based both on the ground that the inamdars were in the position of owners of parts of an estate and that they were also persons entitled to collect rent, within the inclusive portion of the definition.
In Narayanaraju vs Suryanarayudu(2), the question whether the grantee of a portion of a village subsequent to the settlement was a landholder as defined in section 3(5) came up for decision before the Privy Council.
After reviewing the authorities and the conflicting views expressed therein, the Board agreed with the opinion expressed by the majority of the learned Judges in Brahmayya vs Achiraju (1), and held that the grantee of a post settlement minor inam would be a landholder on both the grounds mentioned in their (1) Mad. 716.
(2) [1939] 66 I.A. 278. 914 judgments.
They discarded "the doctrine that so long as the zamindar reserves any interest, however insignificant, the permanent grantee from him cannot be the owner", and observed that the words "part of the estate" occurring in the definition must be given their prima facie meaning.
The Board felt greater difficulty in accepting the view that the inamdar was a landholder entitled to collect rent within the inclusive portion of the definition.
But they expressed themselves satisfied on either ground that "the Full Bench decision of 1922 represents a careful and reasonable solution of a stubborn ambiguity in the Act, and that it ought not now to be overruled having regard to the time which has elapsed and to the character of the interests affected thereby".
Thus, it was settled law in Madras at the time when Act XXVI of 1948 was passed that minor darmila inamdars were owners of parts of an estate.
Construing section 3(b) in the light of the law as then accepted, when a notified estate vests in its entirety in the State under that provision, a minor darmila inam which forms part of it must also vest in it.
Sri R. Kesava lyengar, learned counsel for the respondent, argued that decisions on section 3(5) of 'the Madras Estates Land Act on the meaning of the word 'landholder ' as defined therein, could not be usefully referred to for construing the true scope of section 3(b) of Act XXVI of 1948, as the definition in the Madras Estates Land Act was only for pur poses of settling the rights of landlords and tenants, and would be irrelevant for determining the rights of the inamdar as against the State.
But the ground of ,the decision in Brahmayya vs Achiraju(1) and Narayanaraju vs Suryanarayudu(2) is that the grantee of the inam is in the position of an owner of the part of the estate granted to him, and that would be relevant when the controversy is as to his true status, whether the dispute is between the landlord and the tenant or between the inamdar and the State.
If the inamdar is owner in relation to his tenants, it would be illogical to hold that he is not that, in relation to (1) Mad. 716.
(2) [1939] 66 I.A. 278.
915 the State.
The question is, in our opinion, concluded by section 2(8) of Act XXVI of 1948 which defines a landholder as including a darmila inamdar, and that is a statutory recognition of the doctrine laid down in Brahmayya vs Achiraju(1) and Narayanaraju vs Suryanarayudu(2) that darmila inamdars are owners ,of parts of an estate.
The result then is that when the darmila inam does not relate to the entire village but only to a fraction of it, it must be held to retain its character as part of the estate in the hands of the inamdar, and when the estate is notified under section 1 (4) of the Act, the inam will vest in the State under section 3(b).
It is next argued for the,, respondent that the Act ,makes no provision for award of compensation to minor darmila inamdars and that as a statute is not to be construed as taking away the proper" of any person unless there is a provision for payment of compensation therefor,, these.
inams should be held to be outside the operation of the Act Reference was made in this connection to section 45 of the Act under which the compensation payable in respect of an impartible estate and Ramanathapuram is one is to be apportioned after payment of debts among the members of the family.
It is said that under this section the respondent would have no right to share in it.
This contention is clearly erroneous.
The material provisions relating to the award of compensation ,are sections 25, 27, 37 and 44.
Under section 25, the compensation is to be determined for the estate as a whole and not separately for each of the interests therein.
Section 27 lays down bow the basic income in the case of zamindaris is to be fixed.
Under section 27(i), it has to include one third of the gross annual ryotwari demand in respect of all lands in the estate and under section 27(iv) "one third of the average net annual miscellaneous revenue derived from all other sources in the estate specified in section 3 (b) ".
Thus, the income from the lands comprised in the minor inam which is a part of the estate is included in the total income of the zamindari.
Under section (1) Mad. 716.
(2) (1939] 66 I.A. 278.
116 916 37, the compensation payable in respect of an estate is calculated in terms of the basic income on the scale prescribed therein.
Section 44 enacts that the Tribunal is to "apportion this compensation among the principal landholder ' and any other persons whose rights or interests in the estate stand transferred to the Government under section 3(b)".
There cannot be any doubt on these provisions that the darmila minor inamdar is a person who is entitled to claim compensation for the transfer of his portion of the estate to the Government.
Then comes section 45 on which the respondent bases his contention.
That applies only to the distribution of the compensation determined under section 44 as payable to the principal landholder, when he is the holder of an impartible estate.
It leaves untouched the rights of minor darmila inamdars to claim compensation under section 44.
The contention of the respondent that the Act provides no compensation to them, and that they should therefore be held to fall outside the Act must accordingly be rejected.
(2)That brings us on to the second question whether a post settlement minor inam is a right in land created by a landholder within the intendment of section 20 of the Act.
At the very outset, it seems somewhat inconsistent to hold that a darmila minor inam is part of an estate, and also that it is governed by section 20.
If it is part of an estate, it must automatically vest in the Government under section 3(b).
But if it falls within section 20, the title to it will continue to stand in the inamdar with a right in the Government to take action under the third proviso, subject to the conditions laid down therein.
It was argued for the respondent that section 3 operates on its own terms only "save as otherwise expressly provided herein", and that section 20 was such a provision.
It is somewhat difficult to follow this argument, because if section 20 applied to darmila minor inams, then they could never fall within the operation of section 3(b).
And how is this result to be reconciled with the conclusion that they are parts of 917 the estate, and that the inamdar is a landholder for purposes of the Act? But it is argued for the respondent that the words "rights in land created by landlord" are of the widest import and would take in darmila minor inams.
The point for decision is whether this contention is correct.
We start with this that a darinila minor inamdar is a landholder as defined in section 2,(8) of the Act, and he is that, by reason of his being the owner of a part of the estate.
Can such a person be held to be one who has obtained a right in the land from the landholder within section 20? The Act makes a clear distinction between estates held by landholders and rights and interests held by other persons in or over estates.
Section 3(b) enacts that when there is a notification under section 1(4), the entire estate shall stand transferred to the Government and vest in it.
We have held that the part of the estate belonging to a darmila inamdar would vest in the Government.
Section 3(c) provides that on notification all rights in or over the estate shall cease and terminate.
Section 3(b) and section 3(c) deal with two distinct matters which may respectively be described in broad terms as ownership of the estate and rights in or over estate not amounting to ownership, and these two categories are mutually exclusive.
Now, turning to section 20, it protects rights in land by way of lease or otherwise created by the landholder before the notified date.
In this context, and having regard to the distinction between estates under section 3(b) and rights over estates under section 3(c), the rights mentioned in section 20 can only refer to the rights dealt with in section 3(c), and not to ownership which is within section 3(b).
When, therefore, the transaction for which protection is claimed under section 20 is one which vests ownership of the estate or a portion thereof in the transferee, it will fall outside the section.
In other words, section 20 has no application to transactions by which a person becomes a landholder by reason of ownership of even a part of the estate being transferred to him, and that being the character of a, darmila minor inam it is not pro 918 tected by section 20.
There are also indications in the language of section 20 pointing to the same conclusion.
Section 20(2) provides that the persons whose rights are terminated under the proviso to section 20(1) shall be entitled to compensation having regard to the value of the right which is terminated and the unexpired portion of the period for which the right is created.
These words are more appropriate to connote rights which are to be exercised for specified periods, such as lease or contract for the exploitation of mines or forests for a term than "ownership of the estate".
There is one other consideration, which lends support to this conclusion.
The object of the Act was to establish direct relationship between the State and the tillers of the soil, and to abolish all intermediate tenures.
In Madras, the rights and obligations of intermediate tenure holders were regulated by the Madras Estates Land Act, and under that Act the intermediaries consisted not merely of the holders of the estates as defined in section 3(2) of that Act but also holders of post settlement minor inams as settled by decisions of the highest authority.
If the purpose of the Act is to be fully achieved, it would be necessary to abolish not merely estates as defined in section 3(2) of the Madras Estates Land Act but also darmila minor inams.
But if the contention of the respondent is to be accepted, it is only the estates mentioned in section 3(2) that will, on notification, vest in the Government and not the minor inams.
These will continue to be held by the inamdars under section 20 until they are terminated in accordance with the proviso therein, and survive as islets in the landscape even after the parent estates have dis appeared from the scene.
The legislation must to this extent be held to have failed to achieve its purpose.
And this is not all.
If the contention of the respondent is correct, then the minor inamdars will not merely be unaffected by the Act but will actually be better off for it.
Under section 3(a) of the Act, the Madras Estates Land Act stands repealed on and from the notified date, and as it is by virtue of this 919 Act that the tenants became entitled to occupancy rights, the inamdars would, on notification, be free to eject tenants, and settle their own terms with them.
We cannot accede to a contention which results not merely in the frustration of the object of the Act but further produces consequences, the reverse of what were intended.
On the other hand, the contention of the appellant that minor inams fall outside section 20 and would vest straightaway in the State under section 3(b) will have the effect of extinguishing the rights of the inamdars, and enabling the State to issue ryotwari pattas to the tenants in occupation.
We prefer to accept this contention, as it fully effectuates the intention of the legislature.
In the result, we must hold that the one sixteenth portion of the village of Karuppur forming a darmila inam will vest in the Government under section 3(b) of the Act, and that the only right of the inamdars is to share in the compensation under the terms of the Act.
The petition of the respondent in so far as it relates to this inam must be dismissed.
This appeal is accordingly allowed, and in accordance with the terms of the certificate granting leave, the appellant will pay the costs of the respondent in this Court.
The parties will bear their own costs in the court below.
[/INST]The respondent was Head Assistant in the Panchayat Department of the Punjab Government.
While he was officiating as Superintendent in the Department, he was appointed Panchayati Raj Election Officer, which was an ex cadre post.
On the reorganisation of the State, the respondent was allocated to the appellant State and he continued to work as Panchayati Raj Election Officer in the appellant State.
In 1972, the State Government abolished the post of Panchayati Raj Election Officer and the services of the respondent were dispensed forthwith.
He challenged the order and it was quashed by the High Court.
In appeal to this Court, ^ HELD: Since the order of the appellant abolishing the post of Panchayati Raj Election Officer did not suffer from any infirmity, the High Court was in error in quashing it; but on the abolition of that post, under r. 3.14 of the Punjab Civil Service, Rules, the lien of the respondent on the post of Head Assistant stood revived.
[1040 F G] (1)(a) Whether a post should be retained or abolished is essentially a matter for the Government to decide, and as long as the decision is taken in good faith, it could not be set aside by the Court but, if it is found that the abolition was not in good faith, but was a cloak or device to terminate the services of an employee, then the abolition of the post may be set aside.
[1037 H 1038 C] M. Ramanatha Pillai vs The State of Kerala & Anr. ; , followed.
(b) In the present case, the decision to abolish the post was taken because of administrative reasons.
The Government re organised the Panchayat Department, and all those duties which had nothing to do with the job of Panchayati Raj Election Officer were given to other officers.
The only work left with the Panchayati Raj Election Officer was that of conducting elections of Panchayat Raj Bodies, and, as this work was of a periodical nature, the appellant abolished that post because of financial stringency.
[1038 G 1039 C] (c) Whether greater economy could have been brought about by adopting some other course is not for the Court to go into.
The fact that some of the functions which were being previously performed by the respondent are now being performed by others, whose posts have not been abolished, would not show that the decision to abolish was not taken in good faith.
In deciding which post to abolish, the appellant took into account the relative usefulness of each post, and as this matter was within the administrative discretion of the appellant and as the decision was taken in good faith, the Court cannot interfere with it.
[1039 C 1039 F] (d) The fact that the post which was abolished was held by a person who is confirmed in that post and the posts which were not abolished were held by persons who were not permanent would not also affect the legality of the decision to abolish the former, if the decision was taken in good faith.
[1039 F G] 1035 (2) Under r. 3.14(a), a competent authority shall suspend the lien of a Government servant on a permanent post which he holds substantively, if he is appointed in a substantive capacity, to a permanent post outside the cadre on which he was borne; and under r. 3.15, in the absence of the written request by the employee, the lien cannot be terminated.
Under r. 3.14(e), the Government servant 's lien which has been so suspended shall revive as soon as he ceases to hold a lien on the ex cadre post.
In the present case, since there was no request by the respondent for terminating his lien on the post of Head Assistant, his lien on that post should be held to have immediately revived as soon as the post of Panchayati Raj Election Officer which was an ex cadre post was abolished.
[1039 H 1040 C] T. R. Sharma vs Prithvi Singh & Anr.
[1976] 2 S.C.R. 716, followed.
[It was for the Government to pass all consequential orders regarding his seniority, pension etc.] [1040 C]
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<s>[INST] Summarize the judgementCivil Appeal No. 750 of 1973.
From the Judgment and Order dated 22.9.1972 of the High Court of Bombay in First Appeal No. 540 of 1969.
T.S. Krishnamurthy Iyer, K. Rajendra Chowdhary and K. Shivraj Chowdhary for the Appellants.
V.M. Tarkunde and Mrs. J. Wad for the Respondents.
The Judgment of the Court was delivered by DUTT, J.
This appeal by special leave is at the instance of the defendants in a suit for redemption of two mortgages and is directed against the judgment and decree of the Bombay High Court affirming those of the Joint Civil Judge, Senior Division, Kolhapur, decreeing the suit.
On June 16, 1925, the predecessors in interest of the respondents executed a possessory mortgage bond for Rs.5,000 in favour of the predecessor in interest of the appellants.
The mortgage bond contained a recital that the mortgagee should appropriate the income of the property consisting of some plots of land towards the sum of Rs.3,000 and was entitled to interest @ 9% per annum for the balance sum of Rs.2,000.
By a second mortgage bond, which was by way of a simple mortgage executed on September 3, 1928, the mortgagors mortgaged the same property to the same mortgagee to secure repayment of a further loan of Rs.2,000 with interest @ 9% per annum.
The respondents filed a suit for redemption of the two mortgages 693 in the court of the Subordinate Judge, First Class, Ichalakaranji, being Suit No. 3 of 1947.
A preliminary decree for redemption was passed on September 20, 1948 and it was declared that the amount of Rs.12,125 and odd and a further amount of Rs.236 being the cost of the suit, were due from the mortgagors to the mortgagee.
The mortgagors were directed to pay the amount within six months and on such payment to get the property redeemed; failing which liberty was given to the mortgagee to apply for a final decree for sale.
As the mortgagors failed to make payment within the specified period, on an application made by the mortgagee, a final decree for sale was passed in the suit on March 21, 1952.
The decretal dues, as declared in the final decree, were Rs.12,361 and odd plus cost amounting to Rs.41 for which the mortgaged property or sufficient portion thereof was directed to be sold.
In other words, a preliminary decree and a final decree in accordance with the provision of Order XXXIV, Rules 7 and 8 were passed.
Although the final decree for sale of the mortgaged property was passed, the mortgagee did not execute the final decree and allowed the same to be time barred.
The mortgagee and after him, his heirs and legal representatives, however, continued to be in possession of the mortgaged property.
The respondents, who are the successors in interest of the original mortgagors filed a second suit for redemption of the mortgages, being Special Civil Suit No. 6 of 1968 in the Court of the Joint Civil Judge, Senior Division, Kolhapur, on January 9, 1968 against the appellants, who are the heirs and legal representatives of the original mortgagee.
It was claimed by the respondents that in spite of the passing of the final decree for sale in the earlier suit, being Suit No. 3, 1947, the mortgage still subsisted, and that they were entitled to redeem the same and get possession of the mortgaged property.
Accordingly, they prayed for a decree for redemption, accounts and possession of the mortgaged property from the appellants.
The appellants contested the suit by filing written statement.
It was contended by them that as the mortgagors did not pay the decretal dues under the decree passed in the previous suit, their right of redemption had been extinguished.
They denied the respondents ' claim for accounts.
It was claimed by the appellants Nos. 3, 4 and 5 that their predecessors in title were tenants of the suit land from before 1925 and, as such, they had become protected tenants under the Bombay Tenancy and Agricultural Lands Act.
Alternatively, it was contended that even if the respondents were held to be entitled to 694 redeem the mortgages, they were not entitled to obtain physical possession of the mortgaged property, as the appellants had become protected tenants.
The learned Joint Civil Judge came to the findings that notwithstanding the preliminary decree or the final decree passed in the previous suit, being Suit No. 3 of 1947, the mortgagors ' right of redemption remained alive and was not extinguished and that, accordingly, the respondents were entitled to redeem the mortgages.
The plea of protected tenancy, as raised by the appellants, was negatived by the learned Joint Civil Judge.
On the above findings, the learned Joint Civil Judge held that the respondents were entitled to redeem the mortgages on payment of a sum of Rs.13,551 and odd including interest to the appellants.
In arriving at the amount, he applied the rule of Damdupat in calculating the interest on the principal amount up to the date of the suit.
A usual preliminary decree for redemption was passed by the learned Joint Civil Judge under Order XXXIV, Rule 7 of the Code of Civil Procedure declaring the aforesaid amount as being due from the respondents to the appellants under both the mortgage bonds up to the date of the suit and a period of six months was granted to pay the aforesaid amount and costs of the suit and future interest on the aforesaid amount @ 6% per annum from the date of the suit till realisation.
It was further directed that on payment of the amount in court, the appellants would deliver actual possession of the mortgaged property to the respondents and that in default of payment as aforesaid, liberty was given to the appellants to apply to the court for a final decree for foreclosure.
Being aggrieved by the judgment and decree of the learned Joint Civil Judge, the appellants preferred an appeal to the High Court.
At the hearing of the appeal, it was contended by the appellants that the second suit for redemption was not maintainable; that the rule of Damdupat was not applicable to mortgages and that the appellants had become protected tenants by virtue of the Bombay Tenancy and Agricultural Lands Act.
It was held by the High Court that in spite of the fact that in the earlier suit a preliminary decree and a final decree were passed and the mortgagors did not redeem the mortgages by depositing the decretal dues, still the right of redemption was not extinguished.
As to the applicability of the rule of Damdupat to mortgages, the High Court took the view that the learned Joint Civil Judge was justified in applying the rule following certain decisions of the Calcutta, Bombay and Nagpur High Courts, which will be referred to presently.
Regarding the plea of the appellants that they had become 695 protected tenants under the Bombay Tenancy and Agricultural Lands Act, it was held that as the plea was raised by the appellants Nos. 3, 4 and 5, the amount of land which happened to be in possession of the said appellants Nos. 3, 4 and 5, would be referred to the Mamlatdar and excepting such land the learned Joint Civil Judge was right in decreeing delivery of actual possession of the rest of the land in suit in favour of the respondents.
Subject to this modification, the High Court affirmed the decree of the learned Joint Civil Judge and dismissed the appeal with costs.
Hence this appeal by special leave.
In this appeal, the appellants have challenged the findings of the High Court as to the maintainability of the second suit for redemption out of which this appeal arises and the applicability of the rule of Damdupat.
The finding and direction of the High Court in respect of the plea of the appellants that they had become protected tenants under the Bombay Tenancy and Agricultural Lands Act have not been challenged before us.
Mr. Krishnamurthy, learned Counsel appearing on behalf of the appellants, has urged that in view of the fact that a preliminary decree and a final decree were passed in the earlier suit in accordance with the provisions of Order XXXIV, Rules 7 and 8 of the Code of Civil Procedure, the present suit for redemption of the selfsame mortgages, out of which this appeal arises, is not maintainable.
It is submitted by him that after a preliminary and a final decree for redemption are passed in accordance with the provisions of Order XXXIV, Rules 7 and 8 of the Code of Civil Procedure, the mortgage debt merges in the decretal debt and the right of redemption is extinguished.
In support of his contention, the learned Counsel has placed much reliance upon a decision of the Patna High Court in Sheo Narain Sah vs Mt. Deolochan Kuer, AIR 1948 Patna 208.
In that case, the appellant had purchased a share in the equity of redemption and one of the questions was whether the right of partial redemption acquired by the appellants would survive under Order XXXIV, Rule 5 of the Code of Civil Procedure until confirmation of the same in the execution proceedings.
In that context, it was observed that the mortgage debt had merged in the decretal debt and after the passing of the final decree for sale neither the right of total redemption nor the right of partial redemption, conferred on the mortgagor by section 60 of the Transfer of Property Act, survived the final decree for sale; all that remained thereafter was a different right of redemption conferred by Order XXXIV, Rule 5.
The observation regarding the merger of the mortgage debt in the decretal debt is, in our opinion, to some extent obiter.
696 Section 60 of the Transfer of Property Act confers a right of redemption on the mortgagor.
The proviso to section 60 reads as follows: "Provided that the right conferred by this section has not been extinguished by the act of the parties or by decree of a Court.
" It is thus manifestly clear that the right of redemption will be extinguished (1) by the act of the parties or (2) by the decree of a Court.
We are not concerned with the question of extinguishment of the right of redemption by the act of the parties.
The question is whether by the preliminary decree or final decree passed in the earlier suit, the right of the respondents to redeem the mortgages has been extinguished.
The decree that is referred to in the proviso to section 60 of the Transfer of Property Act is a final decree in a suit for foreclosure, as provided in sub rule (2) of Rule 3 of Order XXXIV and a final decree in a redemption suit as provided in Order XXXIV, Rule 8(3)(a) of the Code of Civil Procedure.
Sub rule (2) of Rule 3, inter alia, provides that where payment in accordance with sub rule (1) has not been made, the court shall, on an application made by the plaintiff in this behalf, pass a final decree declaring that the defendant and all persons claiming through or under him are debarred from all right to redeem the mortgaged property and also, if necessary, ordering the defendant to put the plaintiff in possession of the property.
Thus, in a final decree in a suit for foreclosure, on the failure of the defendant to pay all amounts due, the extinguishment of the right of redemption has to be specifically declared.
Again, in a final decree in a suit for redemption of mortgage by conditional sale or for redemption of an anomalous mortgage, the extinguishment of the right of redemption has to be specifically declared, as provided in clause (a) of sub rule (3) of Rule 8 of Order XXXIV of the Code of Civil Procedure.
These are the two circumstances (1) a final decree in a suit for foreclosure under Order XXXIV, Rule 3(2); and (2) a final decree in a suit for redemption under Order XXXIV, Rule 8(3)(a) of the Code of Civil Procedure when the right of redemption is extinguished.
In the instant case, the earlier suit was not a suit for foreclosure nor was either of the mortgages, a mortgage by conditional sale or an anomalous mortgage and, accordingly, there was no declaration in the final decree passed in the earlier suit for redemption that the respondents would be debarred from all right to redeem the mortgaged property.
Rule 5(1) of Order XXXIV expressly recognised the right of the 697 mortgagor to redeem the mortgage at any time before the confirmation of a sale made in pursuance of a final decree passed in a suit for sale.
Similarly, Rule 8(1) of Order XXXIV permits the mortgagor to redeem the mortgaged property before the confirmation of the sale held in pursuance of a final decree in a redemption suit, unless such final decree debars the mortgagor from all right to redeem the mortgaged property which, as noticed earlier, is provided for in sub rule (3)(a) of Rule 8 of Order XXXIV relating to a mortgage by conditional sale or an anomalous mortgage.
Thus, the provisions of Order XXXIV have laid down in clear terms the circumstances when the right of redemption of the mortgagor would stand extinguished.
It is also clear that in a suit for redemption, a mortgage other than a mortgage by conditional sale or an anomalous mortgage, the mortgagor has a right of redemption even after the sale has taken place pursuant to the final decree, but before the confirmation of such sale.
In view of these provisions, the question of merger of mortgage debt in the decretal debt does not at all arise.
We are, therefore, of the view that the decision in Sheo Narain 's case (supra), in so far as it lays down the merger of the mortgage debt in the decretal debt and the consequent extinguishment of the right of redemption of the mortgagor after the passing of the final decree in a suit for redemption, is erroneous.
In this connection, we may refer to a decision of the Privy Council in Raghunath Singh vs Mt. Hansraj Kunwar, AIR 1934 PC 205 where it has been held by their Lordships that the right to redeem is a right conferred upon the mortgagor by enactment, of which he can only be deprived by means and in manner enacted for that purpose, and strictly complied with.
It is manifestly clear from the said observation that the right of redemption will stand extinguished only under the circumstances as mentioned in the proviso to section 60 of the Transfer of Property Act, that is to say, (1) by the act of party or (2) by a decree of Court.
We have already discussed above the circumstances when by a decree of Court the right of redemption is extinguished.
The Federal Court had also occasion to consider whether a second suit for redemption was barred.
Kania, C.J. speaking for the Court observed as follows: "The right of redemption is an instance of a subsisting mortgage and it subsists so long as the mortgage itself subsists.
As held by the Privy Council in Raghunath Singh 's case, 61 IA 362 the right of redemption can be extinguished as provided in section 60, T.P. Act, and when it is alleged to 698 have been extinguished by a decree, the decree should run strictly in accordance with the form prescribed for the purpose.
Unless the equity of redemption is so extinguished, a second suit for redemption by the mortgagor, if filed within the period of limitation, is not therefore barred.
" Therefore, the contention made on behalf of the appellants that as a final decree was passed in the earlier redemption suit, there was a merger of the mortgage debt in the decretal debt and, as such, the second suit for redemption is barred, is without any substance and is rejected.
We may now consider the second question as to whether the rule of Damdupat is applicable to a mortgage transaction.
Admittedly, it is an equitable rule debarring the creditor to recover at any given time the amount of interest which is in excess of the principal amount due at that time.
It is urged by the learned Counsel appearing on behalf of the appellants that the rule is applicable only to a simple loan transaction and not to a transaction of mortgage.
We are unable to appreciate this contention.
In every mortgage there are two aspects, namely (i) loan and (2) transfer of interest in immovable property.
As mortgage is principally a loan transaction, we do not find any reason why the rule of Damdupat which is an equitable rule should not apply also to mortgage.
It has, however, been held in Madhwa Sighanta Onahini Nidhi vs Venkataramanjulu Naidu, ILR 26 Madras 662 that the rule of Damdupat is inapplicable to cases of mortgage governed by the Transfer of Property Act.
The principal reason for the decision is that in section 2 of the Transfer of Property Act, before it was amended by the Amending Act 20 of 1929, it was provided "and nothing in the second chapter of this Act shall be deemed to affect any rule of Hindu law.
" It was inferred that as the rules of Hindu law were saved only with regard to transfer of property as contained in the Second Chapter, it was not saved with regard to the mortgages of immovable property and charges as contained in Chapter IV of the Transfer of Property Act.
A contrary view was expressed by the Bombay High Court in Jeewanbai vs Monordas Lachmondas, ILR In that case, it has been held that it is not proper to infer that because it has been expressly enacted that nothing in Chapter II of the Transfer of 699 Property Act shall be deemed to affect any rule of Hindu law, the Legislature has deprived a Hindu mortgagor of the protection afforded to him by the rule of Damdupat.
The Calcutta High Court in Kunja Lal Banerji vs Narasamba Debi, ILR has refused to follow the decision in Madhwa Sidhanta 's case (supra), clearly pointing out that in that High Court the uniform rule has been to disallow as between Hindus ' interest larger that the amount of principal in making up a mortgage account.
In Bapurao vs Anant Kashinath, AIR 1946 Nagpur 210, a Division Bench of the Nagpur High Court has held that the rule of Damdupat is applicable to a mortgage, and that it does not in any way affect the provisions of the Transfer of Property Act inasmuch as it merely prevents recovery of interest on the loan in excess of the principal.
Admittedly, the rule of Damdupat was never applicable to Madras.
It has been already noticed that in Madhwa Sidhanta 's case (supra), the principal reason to hold that the rule was inapplicable to mortgages governed by the Transfer of Property Act was that in view of section 2 of the Transfer of Property Act, before it was amended by Act 20 of 1929, the rules of Hindu law were not saved with regard to mortgages of immovable properties and charges as contained in Chapter IV of the Act.
By the Amending Act 20 of 1929, section 2 has been amended and after such amendment it reads "and nothing in the second chapter of this Act shall be deemed to affect any rule of Muhammadan law.
" The inference that was drawn in Madhwa Sidhanta 's case (supra), from the provision of section 2 about the non applicability of the rules of Hindu law including the rule of Damdupat to mortgages cannot now be drawn from the amended provision with regard to any rule of Hindu law.
Moreover, we are of the view that the law was not correctly laid down in Madhwa Sidhanta 's case (supra), and the Calcutta, Bombay and Nagpur High Courts have rightly held in the decisions mentioned above that the rule of Damdupat is applicable to mortgages.
No other point has been urged on behalf of the appellants.
For the reasons aforesaid, the judgment and decree of the High Court are affirmed and this appeal is dismissed with costs quantified at Rs.3,000.
S.L. Appeal dismissed.
[/INST]A suit for redemption of two mortgages was filed in the Court of Subordinate Judge by the respondents, the successors in interest of the original mortgages.
A preliminary decree for redemption was passed with a declaration of the amount due from the mortgagors to the mortgagee.
The mortgagors were directed to pay the amount within six months to get the property redeemed, failing which the mortgagee could apply for a final decree for sale.
On failure of the mortgagors to make the payment, a final decree for sale was passed.
Although the final decree for sale of the mortgaged property had been passed, the mortgagee did not execute the decree which became time barred.
The mortgagee and after him his heirs and legal representatives, however, continued to be in possession of the mortgaged property.
The respondents filed a second suit for redemption of the mortgages in the Court of the Joint Civil Judge against the appellants the heirs and legal representatives of the original mortgagee.
The Joint Civil Judge came to the findings that notwithstanding the preliminary decree or final decree passed in the previous suit, the mortgagors ' right of redemption was not extinguished and the respondents were entitled to redeem the mortgages.
The plea of protected tenancy of the appellants was negatived by the Judge.
The Joint Civil Judge held that the respondents were entitled to redeem the mortgages on payment to the appellants of a sum including interest calculated by application of the rule of Damdupat, and a preliminary decree for redemption was passed under Order XXXIV, rule 7 of the Code of Civil Procedure in respect of both the mortgages, with directions regarding payment of the amount and delivery of actual possession of the mortgaged property, etc to the respondents as also for a final decree for foreclosure in case of default of payment, etc.
690 Aggrieved by the judgment of the Joint Civil Judge, the appellants preferred an appeal to the High Court.
The High Court dismissed the appeal with a modification.
Aggrieved by the decision of High Court appellants appealed to this Court for relief by Special leave.
The appellants challenged the findings of the High Court as to the maintainability of the second suit for redemption out of which this appeal arose and the applicability of the rule of Damdupat.
Dismissing the appeal, the Court, ^ HELD: Sec.
60 of the Transfer of Property Act confers a right of redemption on the mortgagor.
The right of redemption will be extinguished (1) by the act of the parties or (2) by the decree of a Court.
The Court was concerned in this case with the question whether by the preliminary decree or final decree passed in the earlier suit, the right of the respondents to redeem the mortgages had been extinguished.
The decree referred to in the proviso to section 60 of the Transfer of Property Act is a final decree in a suit for foreclosure, as provided in sub rule (2) of Rule 3 of Order XXXIV and a final decree in a redemption suit as provided in Order XXXIV, Rule 8(3)(a) of the Code of Civil Procedure.
Sub rule (2) of rule 3 inter alia provides that where payment in accordance with Sub rule (1) has not been made, the Court shall on an application made by the plaintiff in this behalf, pass a final decree declaring that the defendant and all persons claiming through or under him are debarred from all right to redeem the mortgaged property and also, if necessary, ordering the defendant to put the plaintiff in possession of the property.
Thus, in a final decree in a suit for foreclosure on the failure of the defendant to pay all amounts due, the extinguishment of the right of redemption has to be specifically declared.
Again, in a final decree in a suit for redemption of mortgage by conditional sale or for redemption of an anomalous mortgage, the extinguishment of the right of redemption has to be specifically declared, as provided in clause (a) of sub rule (3) of Rule 8 of Order XXXIV of the Code of Civil Procedure.
These are the two circumstances (1) a final decree in a suit for foreclosure under Order XXXIV Rule 3(2) and (2) a final decree in a suit for redemption under Order XXXIV, Rule 8(3)(a) of the Code of Civil Procedure when the right of redemption is extinguished.
[696A G] In this case, the earlier suit was not a suit for foreclosure nor was either of the mortgages a mortgage by conditional sale or an anomalous mortgage and, accordingly, there was no declaration in the final decree 691 passed in the earlier suit for redemption that the respondents would be debarred from all right to redeem the mortgaged property.
In a suit for redemption, a mortgage other than a mortgage by conditional sale or an anomalous mortgage, the mortgagor has a right of redemption even after the sale has taken place pursuant to the final decree but before the confirmation of such sale.
In view of the provisions of Order XXXIV, the question of merger of mortgage debt in the decretal debt does not arise at all.
The decision of the Patna High Court in Sheo Narain Sah vs Mt. Deolochan Kuer, AIR 1948 Patna 208, relied upon by the appellants, is erroneous in so far as it laid down the merger of the mortgage debt in the decreta debt and the consequent extinguishment of the right of redemption of the mortgagor after the passing of the final decree in a suit for redemption.
The right of redemption will stand extinguished only under the circumstances mentioned in the proviso to section 60 of the Transfer of Property Act, that is, (1) by the Act of party of (2) by a decree of Court, as aforementioned.
The contention of the appellants that as a final decree was passed in the earlier redemption suit, there was a merger of the mortgage debt in the decretal debt and as such the second suit for redemption was barred, was without any substance.
[696G H;697A D] The appellants contended that the rule of Damdupat was applicable only to a simple loan transaction and not a transaction of mortgage.
The Court could not appreciate this contention.
[698D] It is an equitable rule debarring the creditor to recover at any given time the amount of interest which is in excess of the principal amount due at that time.
In every mortgage, there are two aspects, namely, (1) loan and (2) transfer of interest in immovable property.
As mortgage is principally a loan transaction there is no reason why the rule of Damdupat, which is an equitable rule should not apply also to a mortgage.
On the application of the rule of Damdupat, law was not correctly laid down in Madhwas Sidhanta Onahini Nidhi vs Venkataramanjulu Naidu, ILR 26 Madras 662.
The decisions in Kunja Lal Banerji vs Narsamba Debi, ILR ; Jeewan Bai vs Monordas Lachmondas, ILR and Bapurao vs Anant Kashinath, AIR 1946 Nagpur 210, rightly held that the rule of Damdupat is applicable to mortgages.
[698C E;699F G] The Judgment and decree of the High Court were affirmed.
[699G] Raghunath Singh vs Mt. Hansraj Kunwar, AIR 1934 P.C. 205 referred to.
692 Madhwa Sidhanta Onahini Nidhi vs Venkataramanjulu Naidu, I.L.R. 26 Madras 662, disapproved.
Sheo Narain Sah vs Mt. Deolochan Kuer, A.I.R. 1948 Patna 208, held erroneous on the question of merger of the mortgage debt in decretal debt and the consequent extinguishment of the right of redemption of mortgagor after the final decree.
[697D] Kunja Lal Banerji vs Narsamba Debi, I.L.R. ; Jeewanbai vs Monordas Lachmondas, I.L.R. and Baburao vs Anant Kashinath, A.I.R. 1946 Nagpur 210, approved.
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<s>[INST] Summarize the judgementAppeal No. 459 of 1958.
Appeal by special leave from the judgment and decree dated June 29,1955, of the former Andhra High Court in Second Appeal No. 730 of 1949.
A.V. Viswanatha Sastri and 'P. V., R. Tatachari, for the appellants.
K. Bhimasankaram and G. Gopalakrishanan, for the respondents.
September 29.
The judgment of Wanchoo, Das Gupta and Shah, JJ., was delivered Wanchoo, J., Dayal J. delivered a separate 912 WANCHOO, J. This is an appeal by special leave from the judgment and decree of the Madras High Court.
The appellants were defendants in a suit brought by the respondents for possession of certain properties which originally belonged to one Subbarayudu.
The case of the respondents was that Subbarayudu executed a will dated September 15, 1885.
Under that will the property passed on hit; death to his wife with life interest and after her death absolutely to his daughter Krishnavenamma who was in enjoyment thereof till her death in 1933.
The daughter executed a will on March 24, 1933, in favaur of her step son Nagaraju who came into possession of the property on her death soon after.
Nagaraju in his turn executed a will on August 16, 1933, by which he gave life interest to his wife who was the first plaintiff (now the first respondent before us) and thereafter the property was bequeathed absolutely to his daughters.
The second respondent is the tenant of the first respondent.
Nagaraju died soon after executing the will and the case of the first respondent was that she came into possession of the property on his death and was in enjoyment thereof till she was forcibly ejected in 1943 by the appellants who claimed to be the purchasers of the property from Seetaramayya and Ramakotayya who in their turn claimed to be the reversioners of Subbarayudu.
Consequently, the suit out of which the present appeal has arisen was filed in June, 1944, for possession and mesne profits.
The suit was resisted by the appellants, and their case was that they had purchased the property from the reversioners of Subbarayudu in 1942.
It was further contended on their behalf that on the death of Krishnavenamma the reversioners came into possession of the property through the tenants who had been in possession from before under a lease granted to them by Krishnavenamma.
These tenants remained in possession till the sale deed in favour of the appellants and attorned to the 913 appellants thereafter.
Later the two tenants surrendered possession to the appellants who thus came into actual possession of the property in suit.
The appellants also contended that the so called will executed by Subbarayudu was a forgery and the first respondent had no title to the property.
On these pleadings, the main point that arose for decision was whether the first respondent had title to the property and was in possession of it till she was dispossessed in 1943.
Further the title set up by the appellants was also gone into and their claim as to possession came up for consideration.
The trial court found that the will said to have been executed by Subbarmyudu was not proved.
In consequence of this finding, it came to the conclusion that the title of the first respondent which depended upon the proof of this will was not a legal title.
Further it found that it was not established that Seetaramayya and Ramakotayya were the next reversioners to the estate of Subbarayudu.
The result of these findings was that no title was found in either party.
These findings have been upheld by the Subordinate Judge and also by the High Court in second appeal and therefore it must now be accepted that both the parties have no title to the property in suit.
The main contest therefore centred round possessory title which was also asserted by both the parties in the trial court.
On this question the trial court found that after the death of Krishnavenamma, the name of the first respondent was entered in the revenue papers in her place but the property was actually in possession of the two tenants by virtue of the lease executed in their favour by Krishnavenamma in 1929 for six years.
Therefore, there was a kind of race between respondent No. I and Seetaramayya and Ramakotayya who set themselves up as reversioners to obtain the favour of these two tenants, and the so.
called reversioners managed to obtain in June, 1933, a kadapa from the two tenants for five years 914 ending with May, 1938.
They also executed a cowle in favour of the tenant,% and both these documents were registered in July, 1933.
But the finding of the trial court was that there was no payment of rents in the years 1933 'and 1934 and that the real fight for the land started towards the end of 1935 or the beginning of 1936 and although documents were taken from the tenants by the so called reversioners no actual payment of rent was made to them.
It also held that in this game of winning the favour of the tenants the real gainers were the tenants who paid no rent to either the first respondent or the so called reversioners.
The trial court further held that it was in 1936 that the first respondent managed to dispossess the tenants forcibly through her tenant Moka Subbarao who seems to have been a person of some influence in the village.
Thereafter the first respondent remained in possession through her tenant till she was dispossessed in November, 1943, forcibly by the present appellants after they had purchased the lands from the go called reversioners.
In effect, therefore.
the finding of the trial court was that neither party was in Possession.
of the property up to 1936 and it was only in 1936 that the first respondent came into possession through Moka Subbarao by dispossessing the tenants who were holding the land from the time of Krishnavenamma and had paid no rent to anybody after her death In consequence the trial court hold that as the possession of the first respondent was earlier she was entitled to succeed at least on the ground of possessory title.
Incidentally it also held that although the title of the first respondent was defective for the reason that Krishnavenamma did not have absolute right in the property it was not :void but was only voidable at the instance of the nearest reversioner or some one else having better title, which the appellants or their predecessors in interest did not have.
In the result the suit was decreed with mesne profits.
915 This was followed by an appeal to the Subordinate Judge by the present appellants.
We have already said that the Subordinate Judge upheld the findings of the trial court on the title of the parties and came to the conclusion that the title of neither party was proved.
He also rejected the view of the trial court that the first respondent at any rate had some title though defective it might be.
He then addressed himself to the question of possessory title and considered whether the finding of the trial court that the first respondent was in possession ' earlier than the appellants and was therefore entitled to recover possession on the basis of her.
possessory title, was correct.
He. came to the conclusion that the so called reversioners had got possession of the property peacefully immediately after the reversion opened.
in 1933 and therefore the appellants were entitled to maintain their possession as they derived their title from the so called reversioners who had earlier possession than the first respondent.
In coming to this conclusion the Subordinate Judge relied on the Kadapa executed by the tenants in favour of the so called reversioners in June, 1933, and the cowle executed by the so called reversioners in favour of the tenants.
But the Subordinate Judge did not consider the further question which was considered by the trial court,.
namely, whether after the execution of the Kadapa and the cowle the so called reversioners.
ever collected rents from the tenants who were there from the time of Krishnavenamma between 1933 and 1936.
This question had been specifically considered by the trial court and it had come to the conclusion that though the kadapa and the cowle had been executed they were mere paper transactions and the so called reversioners had never collected rents during this period and the tenants had never paid the rent to anybody during this period.
The Subordinate Judge, however, allowed the appeal and dismissed the 916 suit on the view taken by him that the so called reversioners had come into possession of the property after the death of Krishnavenamma end were forcibly ejected in 1936 by Moka Subbarao as the tenant of the first respondent.
This was followed by a second appeal by the respondents.
The High Court took the view that the finding of the Subordinate Judge that the so called reversioners were in possession from 1933 to 1936, could not be accepted.
According to the High Court, the main question was whether the tenants who were there from before really attorned to the reversioners.
The High Court then went into some of the evidence and held that various matters which should have received the attention of the Subordinate Judge in coming to a conclusion on this important point of fact were not considered by him; therefore it was not prepared to accept the finding of the Subordinate Judge in second appeal and required the Subordinate Judge to submit a fresh finding on this question.
When the ' matter went back to the Subordinate Judge he examined the entire evidence and came to the conclusion that the so called reversioners in order to create evidence of possession had taken the kadapa from the tenants after winning them over to their side, perhaps by a promise not to collect rent from them.
He also came to the conclusion that the so called reversioners were not in possession of the property after the death of Krishnavenamma from 1933 to 1936 and that it appeared that during that period neither party was in possession and only 'the tenants who were there from the time of Krishnavenamma continued to being possession but without paying rent to anybody.
He further held that in the circumstances the possession of the tenants could only 'be treated as that of the rightful owner which neither party was in this case.
Finally he came to the conclusion that it was for the first time in 1936 that Moka Subbarao took possession of the 917 land as the tenant of the first respondent and the appellants got possession for the first time in 1943.
Therefore he held that as the first respondent 's possession was earlier it must be restored.
This finding was accepted by the High Court with the result that the second appeal was allowed and the order of the trial court restored.
The appellants have come to this Court by special leave.
The main contention urged before us on behalf of the appellants is that the High Court had no jurisdiction in second appeal to reverse the finding of fact arrived at by the first appeal court as to possession, and inasmuch as the High Court indirectly reversed that finding by calling for a further finding on the question of possession, the judgment of the High Court should be set aside as without jurisdiction.
On the other hand it has been urged on behalf of the respondents that though the first order of the High Court calling for a finding looks as if it was interfering with a finding of fact as to possession, a close examination of the circumstances and the findings of the trial court and the first appellate court will show that in fact there was no finding by the first appellate court on the crucial question which arose in the suit resting on possessory title and therefore the High Court was justified in calling for a finding in the matter.
It is urged that where the case is based on possessory title only, a party must establish effective possession before it can succeed on its possessory title.
On the question of effective possession the trial court had found that though there was a kadapa by which, it may be said, the tenants who were there from before had attorned to the so called reversioners, that was a mere paper transaction and the tenants never paid rents to the so called reversioners; as such,the reversioners never had effective possession between 1933 and 1936.
According to the respondents, this finding of the trial court should have been specifically considered by the Subordinate 918 Judge; but all that 'the Subordinate Judge did 'was" to rely on the kadapa and hold on the basis of that document that the so called reversioners had come into possession peacefully.
It is said that whatever may be said about the value of attornment: made in favour of the true owner the position.
is different where attornment is in favour of a person who is not the true owner.
In such case before the person in whose favour an attornment has been made, can establish that , his possession was effective it must also be shown that he was paid rent by the tenants who attorned to him.
Therefore, it is urged that, as there was no finding by the Suboridnate Judge on this crucial question the, High Court was justified in sending the case back to the Subordinate Judge for a finding in this regard.
As such, it is urged that this is not a case where the High Court had reversed, a finding of fact by the first appellate court which it is admitted it has no jurisdiction to 'do; but it is a case where there was no finding on the crucial question of fact by the Subordinate Judge and the High Court therefore hid jurisdiction to call for a finding in this regard.
We are of opinion that though on a first reading of the High Court judgment calling for,a finding it does look as if the High Court was reversing the finding of fact as to possession ' when it called for a further finding on the question, a closer examination of its Judgment calling for a finding along with the findings by the Munsif and the Subordinate Judge on the crucial question involved in this case shows that it held that there was no 'finding by the Subordinate Judge on that crucial question,, though the trial court had given a finding in favour of the first respondent in that respecter, As both parties were relying on possessory title, it was necessary that they should prove effective possession over the, property in order to succeed on the basis of possessory title.
By effective possession we mean either ' actual possession or 919 possession through a tenant who must have paid rent voluntarily or under a decree to the person claiming possessory title.
The kadaps by the previously existing tenants in favour of the so called reversioners all along been treated as an attornment by all the three courts and we therefore accept it as such.
If the so called reversioners Third title in the sense that they were the next reversioners, then attornment by the kadapa would have been sufficient to establish their possession over the property; but where the person in whose favour the attornment bad been made has no title,, a mere paper attornment would not be enough to establish as against third parties the possession of the person in whose favour attornment has been made and it will still have to be shown that the possession.
was effective in, the sense that the person who attorned also paid rent voluntarily or under a , decree to the person in whose favour he made the attornment.
The fact that, the tenants who had executed the kadapa may be estopped from challenging the title of the so cAlled reversioners, if a suit was brought Against them makes no difference to the position stated above.
The finding of the Munsif was that no rent had been paid to anyone by the tenants; further no suit had, been brought by the so called reversioners, to recover the rent before the first respondent got into possession.
The kadaps therefore remained a mere paper transaction and attornment through it would not be sufficient to put the so called reversioners in effective possession and confer possessory title on them which could be taken advantage of by the appellants to show earlier possessory title as against the undoubted Possessory title of the first respondent from 1936.
It seems to us that, that is what the High Court meant when it said that the crucial question in this case was "whether the tenants really attorned to the reversioners".
We emphasise the word "really" Which shows that the High Court was not satisfied With mere paper attornment which was all 920 that was found by the Subordinate Judge and rightly required in a case based on possessory title only that the attornment should be a real attornment, i. e., one in which the person attorning should also have paid rent either voluntarily or under a decree to the person in whose favour the attornment was made.
The Subordinate Judge, however, had merely considered the paper attornment and had not considered the evidence as to payment of rent, which was, there and which had been considered by the trial court.
The trial court had come to the conclusion after considering the evidence relating to payment of rent that in fact there was no payment though the attornment was made through the kadapa.
The trial court therefore held that from 1933 to 1936, only the tenants were in possession but they never paid rent to anybody and thus neither party was in possession through them.
This aspect of the finding of the trial court was completely overlooked by the Subordinate Judge who decided the question of possession merely on the paper attornment (namely, the kadapa).
What the High Court seems to have meant when it said that the real question was not properly considered by the Subordinate Judge therefore was that he was merely satisfied with paper attornment in a case based on possessory title which was not enough in law and had not given any finding as, to whether the attornment was a reality in the sense that the rent was paid and would thus result in effective possession of the so called reversioners through the tenants.
It seems to us therefore that though the form in which the High Court expressed itself when it called for a finding was not happy, what the High Court really did was to hold that there was no finding by the Subordinate Judge on the question of effective possession of the so called reversioners after a consideration of the evidence relating to payment of rent etc.; it therefore called for a finding on the question of effective, possession after 921 consideration of the entire evidence.
This in our opinion the High Court was justified in doing because the trial court had considered the entire ,evidence and had come to the conclusion that the so called reversioners had no effective possession and the attornment through the kadaps was a mere paper transaction.
In these circumstances it cannot be said that the High Court had no jurisdiction to call for a finding.
It is not disputed that if the High Court had jurisdiction to call for a finding the final order of the.
High Court allowing the appeal based on the finding which was submitted was not open to question.
We therefore dismiss the appeal but in the circumstances pass no order as to costs of this Court.
RAGHUBAR DAYAL, J.
I agree that the appeal be dismissed, but for different reasons.
If Narasimhulu and Ramudu alias Mark, who were in possession of the land in suit under the lease, exhibit P 6, dated May 6, 1929, for six years from Josyula Krishnavenamma, had attorned to Ramakotiah and Seetharamiah by executing the Kadapa (Kabuliat) exhibit D 4, on March 16, 1933, I do not think that any further payment of rent was necessary to make the attornment effective and am of opinion that in that case the view of the learned Subordinate Judge to the effect that the predecessors in interest of the defendants appellants were in possession through their tenants over the land in suit, Was correct.
The High Court did not decide by its first order remitting the point No. 2, viz., ,whether the plaintiffs got into possession of the suit properties earlier than the defendants and their predecessor in title and whether they are entitled to recover possession of the suit properties on the strength of their Possessory title ' for a fresh finding that the attornment by the execution of the deed of Kadapa was not good attornment without the executants paying rent to Ramakotiah and Seetharamiah.
The learned Judge simply said: 922 "Apart from 'the question whether the principle of law adopted by the learned.
Judge is welf founded or not, on which I express no opinion at present it seems to me that the finding of the learned Judge that,, the first defendant bad prior, possession from 193 to 1936 cannot be accepted in second appeal" The finding about the prior possession, of the learned Subordinate Judge was not accepted by the High Court because it considered that the Subordinate Judge bad not closely scrutinized the evidence in the case on the very crucial question in issue between the parties.
This crucial question was formulated as 'whether the tenants really attorned to the reversgioners and the reversioners recognized the possession of the tenants as theirs. ' What was want by the High Court from this question, is not clear to me.
If the execution of the deed, exhibit D 4, amounted to the attornment by the tenants in favour of Seetharamiah and Ramakotiah, who claimed to be the heirs of Krishnavenamma, and the execution of the cowle, exhibit D 5, by those two persons in favour of the tenants, to the recognition of the tenants as their tenants, no further question of scrutiny of any other evidence on record could have arisen.
The other evidence on record about which the High Court expressed its opinion, and that too not in a final form, as a fresh finding was being called on the basis of that evidence, mainly consisted of the evidence in favour of the defendant,%.
Non consideration of that evidence could have been a grievance to the defendants, but not to the plaintiffs appellants before the High Court.
Expression of opinion in that form on such evidence wag detrimental to the interest of the defendant in a fresh 'consideration of that evidence by the Subordinate Judge, who,, naturally, in his fresh finding, followed a practically similar line of criticism against "that evidence.
The mere fact that certain evidence had not been closely scrutinized or, in other orders, not scrutinized, in & manner, in which the second 923 appellate Court desires, it to be scrutinized, cannot be round for interference with the finding of fact in the second appeal.
If the High Court considered, is being now urged for the respondent, that without proof of the tenants actually paying rent to,, Seetharamiah and Ramakotiah, who laid claim as heirs but have been proved to be not heirs of Rat Krishnavenamma, there was no valid attornment, the order for a fresh finding about attornment could be justified on the ground that the Subordinate Judge had not referred to the evidence having a hearing on the question of the payment of rent by the tenants and its receipt by the new landlords Seetharamiah and Ramakotiah.
I however find it difficult to put such a construction on the High Court 's order when it did not decide upon the principle of law adopted by the first appellate Court.
"Attornment, in its strict sense, is an agreement of the tenant to a grant of the reversion made by the landlord to another, or, as it has been defined ', 'the act of the tenants putting one person in the place of another as his landlord" see paragraph 732, Foa 's General Law of Landlord and Tenant.
This means that in the first instance attornment is made in favour of the person who has derived his title or supposed ' title from the Original landlord.
It implies a continuity of the tenancy created by the original landlord in favour of the tenant.
It is in these circumstances that the existing tenant, for the rest of the period of his Tenancy, agrees to acknowledge the new landlord as his landlord.
Such an agreement of the tenant amounts to attornment and by such an attornment the tenant by his act substitutes the new landlord in place of the previous one.
Such attornment is complete the moment the tenant agrees to acknowledge the new landlord to be his landlord.
Any future payment or non payment of rent does not affect the relationship created by the attornment.
The new landlord will have his remedies with respect to the rents falling in arrears.
924 Again, it is stated in paragraph 745 at page 475 : "With regard to the title of person from whom the possession was not obtained, but who has been recognised as landlord by the tenant, such recognition may be by express agreement, by attornment, or other formal acknowledgment (as by paying a nominal sum of money), by payment of rent, or of a. nominal sum as rent, or by submission to a distress.
" The attornment is here described as one mode of recognising a person as one 's landlord, just as payment of rent is another mode for the purpose.
Expression to similar effect is to be found in paragraphs 746, and also 747 where it is further noted : "But the tenant is not allowed to impeach the title of a person to whom he has paid rent, or whose title he has otherwise recognised, without showing a better title in some other person.
Thus he cannot, after attorning to a person who derives his title under a will, contend merely that upon a true construction o f the will he had no title; nor can he, after paving him rent, dispute his title merely on the ground that the devise to him was void, owing to the incapacity of the testator.
" In krisna Proshad Lal Singha Deo vs Baraboni Coal Concern (1) the Privy Council said at page 318, when considering the scope of section 116 of the Indian Evidence Act: "Whether during the currency of a term the tenant by attornment to A who claims to have the reversion, or the landlord by acceptance of rent from B who claims to be entitled to the term, is estopped from disputing the ' claim which he has once admitted,, we important questions, but they are instances of cases which are outside section 116 altogether.
" (1) (1937) L. R. 64 I. A. 311.
925 And again, at page 319 "In the ordinary case of a lease intended as a present demise which is the case before the Board on this appeal the section applies against the lessee, any assignee of the term and any sub lessee or licencee.
What all such persons are precluded from denying is that the lessor had a title at the date of the lease, and there is no exception even for the case where the lease itself discloses the defect of title.
The principle does not apply to disentitle a tenant to dispute the derivative title of one who claims to have since become entitled to the reversion, though in such cases there may be other grounds of estoppel, e.g., by attornment, acceptance of rent etc.
In this sense it is true enough that the principle only applies to the title of the landlord who let the tenant in ' as distinct from any other person claiming to be reversioner." These observations make it clear that simply by attornment the tenant is estopped from questioning the derivative title of the claimant 's successor just as the acceptance of rent will create an estoppel against the landlord from denying the person, who paid the rent, to be his tenant.
These observations do not indicate that any actual payment of rent by the tenant who has attorned is necessary to make the attornment effective.
If it was otherwise, the new landlord in whose favour the tenant has attorned, will not be able to take successfully any action against that person till that person had made the first payment of rent.
I am therefore of opinion that on co the tenant has agreed to accept the person claiming title from the previous landlord, that amounts to effective attornment in favour of the landlord and is no more dependent on the future conduct of the tenant by way of payment of rent or otherwise.
926 A person can establish his possessory title by establishing that he had been in actual possession of the land in suit or had been in possession through tenants.
So long as the persons in actual possession are deemed to be his tenants on account of their conduct in recognising that person as their landlord and are estopped to question his title, I see no good reason why their possession be not taken to be, the possession on behalf of that person, irrespective of the fact whether that person bad legal title or not.
If he had legal title, no question of relying on possessory title would ever arise.
It is only in the case of his failure to establish his legal title that he has to fall back upon possessory title.
I see no good reason why the possession of tenants who had attorned to a person having no title be not considered to be his possession in determining whether he had preferential possessory title to that of another, who too has no title and secured possession of the land subsequent to the attornment.
In this view of the matter, I am of opinion that the High Court was wrong in asking for a fresh finding on the question of possession when it bad not decided that the tenants had not, in law, attorned to Seetharamiah and Ramakotiah, on the basis of the two documents Kadapa exhibit D 4 and Cowle exhibit D 5, and when according to the first appellate court, the effect of those documents was that the tenants had attorned to them.
I am, however, of opinion, though the point was not raised, that the Kadapa exhibit D 4 is not an agreement by tenants simply accepting the claimants to be the new landlords as, by this document, they do not just substitute the new landlords in the place of the old.
They really took a new lease from those two persons.
The terms of the new lease were different from those of the lease of Krishnavena The unexpired period of the tenancy was two years.
Under the Kadapa, the new tenancy was to continue for five years from June, 1933.
The lease does not cover just the land which they held under 927 their previous tenancy, but included some other land as well.
The amount of rent they were to pay also differed.
It was much reduced.
Such a document is not a deed of attornment but is a document accepting fresh tenancy.
Seetharamiah and Ramakotiah could not in law lease the land in suit to those tenants as they had no tit ,in themselves, they being not heirs of Krishnavenamma.
Any lease executed by them created no right.
These lessors were not in actual possession of the land at any time.
They could not have, therefore, conveyed possession to their tenants.
As the new lesseess got no title under the lease, their continued possession over the land in suit could not be possession under the lease on behalf of the new lessors, especially when their possession can be traced to the valid tenancy under the deed, exhibit P 6, in favour of Krishnavenamma and will be deemed to be on behalf of legal heir.
Seetharamiah and Ramakotiah, therefore, cannot be held to be in possession of the land in suit through their tenants between June, 1933, and some time in 1936, when those tenants were dispossessed by Moka Subba Rao on behalf of plaintiff No. 1.
It follows that the predecessors in interest of the defendants have been rightly held to be not in possession of the land in suit prior to plaintiff No. 1, 'who too.
, had no title, getting possession of the land in suit and that the order under appeal is correct.
Appeal dismissed.
[/INST]The expression " decree for recovery of possession " in section 18 (1), of the West Bengal Premises Rent Control (Temporary Provisions) Act (Act XVII of 1950) does not include an order for recovery of possession made under section 43 'of the , and a person against whom an order for 534 recovery of possession has been passed under section 43 of the , is not therefore entitled to claim relief under the provisions of section 18 (1) of Act XVII of 1950.
Rai Bahadur Atulya Dhan Banerjee vs Sudhangsu Bhusan Dutta ([1951] 5 , Dhanesh Prokash Pal vs
Lalit Mohan Ghosh ([1951] , Mohan Lal Khettry vs Chuni Lal Khettry ([1951] Jethmull Sethia vs Aloke Ganguly ([19511 , Iswari Prosad Goenka vs N. B. Sen ([19511 overruled.
In construing a statute it is not competent to any court to proceed upon the assumption that the Legislature has made a mistake and even if there is some defect in the phraseology used by the Legislature, the Court cannot aid the defective phrasing of an Act or add and amend, or by construction, make up deficiencies which are left in the Act.
Commissioner for Special Purposes of Income Tax vs Pemsel (11891] A.C. 531); Crawford vs Spooner ([1846 51] 4 M.I.A. 179) and Hansraj Gupta vs Official Liquidator of Dehra Dun Mussourie Electric Tramway Co. Ltd. ([1933] 60 I.A. 13) referred to.
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<s>[INST] Summarize the judgementAppeal No. 78 of 1962.
Appeal from the judgment and order dated April 13,1960, of the Bombay High Court in Income tax Reference No 40 of 1959.
R.J. Kolah, J.B. Dadachanji, O.C. Mathur and Ravinder Narain, for the appellants.
N.D. Karkhanis and R.N. Sachthey, for the respondent.
November 25, 1963.
The Judgment of the Court was delivered by SARKAR J.
This is an appeal against a judgment of the High Court at Bombay given on a case stated to it under the Income tax Act and answering in the affirmative the following question: "Whether the levy of Rs. 68,501/ as penalty for concealment in the original return for the assessment year 1951 52 is legal?" The question arose, in the assessment of the appellant, a firm, for the year 1951 52 in respect of which the accounting year was the calendar year 1950.
The assessee carried on business at Surat it had a branch at Bangkok to which it exported cloth from India.
The branch also made purchases locally and sold them.
During the last world war the business at Bangkok had been in abeyance but it was re started after the termination of the hostilities.
In its return for the assessment year 1949 50 the assessee did not include any profit of the Bangkok branch but stated that the books of account of the Bangkok branch were not available and that therefore its profit might now be assessed on an estimate basis subject to action under section 34 or 35 on production of statement of account.
: The assessment was there 563 upon made on the basis of profit at 5 % on the export to Bangkok branch appearing in the Surat books.
For the year 1950 51 again there was no reference to the Bangkok branch in the return and a similar estimate was made for this year also.
For the year, 1951 52 also the Bangkok business profits were not shown but on January 11, 1952, the Income tax Officer issued a notice to the assessee under section 22(4) of the Act to produce the profits and loss account and balance sheet with the relevant books.
The assessee excused itself by alleging on January 29, 1952 that the books were at Bangkok and the profit and loss account and the balance sheet could not be drawn up unless its partner, Hatimbhai A. Malbary, went there personally and there was no certainty as to when he would go there and promising that in the following year these accounts for the calendar year 1950 would be produced.
Thereupon the Income tax Officer made an estimate of the sales of the Bangkok branch at Rs. 7,50,000 and of the net profits at 5% thereon, amounting to Rs. 37, 5001 .
This assessment was made on January 31, 1952.
On the same day he issued a notice under section 28(3) of the Act requiring the assessee to show cause why a penalty under s.28(1)(c) for concealment of the particulars of the income of 1950 should not be levied.
The assessee was heard on this notice and on January 22, 1954, the Income tax Officer imposed a penalty of Rs.20,000 on it as its explanation was not acceptable.
In the meantime assessment proceedings for the year 1952 53 had commenced and this year also the assessee adopted a similar attitude as in the previous years.
The Income tax Officer was however insistent and, therefore, after various adjournments, the assessee had on August 17, 1953 to produce the accounts and books of the Bangkok branch.
It appeared from these books that in the calendar year 1950 the assessee had made a profit of Rs. 1,25,520/ .
The Income tax Officer thereupon commenced proceedings under section 34 of the Act against the assessee in respect of the assessment year 1951 52 and gave 564 notice to the assessee to submit a return.
The assessee then submitted a return stating therein correctly the profits for the calendar year 1950.
The Income tax Officer completed that assessment after directing the .issue of a further notice under section 28(3) on April 8, 1954 requiring the assessee to show cause why penalty should not be levied for deliberately concealing the particulars of his income of 1950.
Pursuant to this notice the Income tax Officer passed another order on February 28, 1957 imposing a penalty of Rs. 68,501.
So there were two orders of penalty.
The assessee appealed to the Appellate Assistant Commissioner against both the aforesaid orders of penalty but the appeals were rejected.
There is no dispute as to the assessment of the income.
The assessee then appealed to the Income tax Appellate Tribunal.
The Tribunal observed, "It is indeed difficult to understand the action ' of the Department in splitting up one offence into two proceedings.
So far as the levy on the basis of the 23(3) assessment is concerned, it appears to have no basis as till that stage the Department had not succeeded in establishing and bringing home any guilt.
It was still in the region of estimate. .
The levy of Rs. 20,000 has to be remitted in full.
The levy of Rs. 68,501 is entirely different.
With the definite knowledge that the Income tax Officer had obtained that the profit for the year was Rs. 1,25,520 he has clearly proved the guilt of concealment against the assessee. .
The penalty is not at all excessive and accordingly confirmed.
" The revenue authorities never questioned the cancellation of the first order of penalty.
Thereafter the asseseee obtained a reference to the High Court of the question which we have set out at the beginning of this judgement.
That question, it will be noticed, referred only to the penalty of Rs. 68,501 / imposed pursuant to the second notice under section 28(3) for concealing the particulars of the income of 1950.
It has to be observed that in the return that was filed in the proceedings started under 565 section 34, the assessee furnished correct particulars and it also produced the books.
So it had not committed any default in connection therewith.
The notice must therefore be taken to have been in respect of the original concealment of the income.
The assessee knew and this is what was found by the Tribunal% and that is a finding of fact which is binding on a Court in a reference that its profits were Rs. 1,25,520/and it had not disclosed that profit originally nor produced the relevant books but permitted the Incometax Officer to proceed on an estimate of that profit at Rs. 37,500/ .
It was contended in the High Court that in respect of the same concealment there were thus two penalties involved, namely, one of Rs. 20,000 and the other of Rs. 68,501/ .
The High Court agreed with the contention of the assessee that two penalties could not be levied in respect of identical facts but it held that the penalties in this case had not been levied on the same facts.
It observed that the original assessment was solely on the basis of an estimate and the second assessment was after knowledge of the full facts of the concealed income.
In this Court Mr. Kolah has urged that the second order for penalty was illegal because there was one concealment and in respect of that an order for penalty of Rs. 20,000/ had earlier been made.
He contended that there was no jurisdiction to make the second order of penalty while the first order stood and for that reason the second order must be treated as a nullity.
He further stated that the fact that the first order was subsequently cancelled by the Tribunal would not set the second order on its feet for it was from the beginning a nullity as having been made when the first order stood.
We are unable to accept this argument.
It may be that in respect of the same concealment two orders of penalty would not stand but it is not a question of jurisdiction.
The penalty under the section has to be correlated to the amount of the tax which would have been evaded if the assessee had got away with the concealment.
In this case having assessed 566 the income by an estimate, the Income tax Officer levied a penalty on the basis of that estimate.
Later when he ascertained the true facts and realised that a much higher penalty could have been imposed, he was entitled to recall the earlier order and pass another order imposing the higher penalty.
If he had omitted to recall the earlier order that would not make the second order invalid.
He had full jurisdiction to make the second order and he would not lose that jurisdiction because he had omitted to recall the earlier order, though it may be that the two orders could not be enforced simultaneously or stand together.
However, in the present case the earlier order having been cancelled and no objection to the cancellation having been taken, we have only one order and that for the reasons earlier stated is, in our view, a legal order.
It was also said that when the first order of penalty was passed the Income tax Officer was in possession of the full facts which would have justified the imposition of the higher penalty.
It was pointed out that the first order of penalty was passed on January 22 1954 while the books disclosing the real state of affairs had been produced before the Income tax Officer on August 17, 1963.
It was contended that in inspite of this he passed the order imposing a lower penalty, he had no right later to change that order In support of this contention reference was made to C. V. Govinderajulu Iyer vs Commissioner of Income tax, Madras" '.
There it was argued that the original proceeding under section 23(3) and a proceeding under section 34 in respect of the same period were different and in the latter proceeding a penalty could not be imposed for a concealment in respect of the original proceeding.
Rajamannar C.J. rejected this contention and held, "that so long as the proceedings under Section 34 relate to the assessment for the same period as the original assessment, the Income tax Officer will be competent to levy a penalty on any ground open to him under Section 28(1), even though it relates (1) [16] I.T.R. 391 567 to the prior proceeding".
He however proceeded to observe, "There may be one possible qualification of his power, and that is when the default or the act which is the basis of the imposition of the penalty was within the knowledge of the officer who passed the final order in the prior proceeding and if that, officer had failed to exercise his power under Section 28 during the course of the proceeding before him.
Possibly in that case he would have no power.
" Learned counsel for the appellant relied on this latter ob servation in support of his contention.
We do not think that Rajamannar C.J. wished to state this qualification on the power of the Income tax Officer as a proposition of law.
It was not certainly necessary for the purposes of the case before him.
We do not wish to be understood as subscribing to it as at present advised.
But assume that this statement of the law is correct.
It has no application to the present case.
What is said is that if the default which entails the penalty was within the knowledge of the authority when it passed the final order in the prior proceeding no penalty could be later imposed.
Now Rajamannar C.J. was not dealing with a case in which two penalties had been imposed.
The case before him was one in which no return had been filed pursuant to a general notice but subsequently section 34 proceedings had been stated and resulted in an assessment and an order imposing a penalty was thereupon passed.
The final order in the prior proceedings referred to by the learned Chief Justice must, therefore, be final assessment order in the prior proceedings.
Now in the present case the final order in the prior assessment proceedings was made on January 31, 1952 and on that date the Income tax Officer had no knowledge of the concealment of income of Rs. 1,25,520.
Therefore it seems to us that the observation of Rajamannar C.J. does not assist Mr. Kolah.
We may also observe that the first order of penalty passed on January 22, 1954, was pursuant to a notice issued on January 31, 1952 in respect of which the assessee had offered 568 his explanation on March 11, 1952.
That notice 'was not concerned with any concealment that came to light from the production of the books on August 17, 1953 and, therefore, on this concealment the assessee had never been heard.
In assessing a penalty If on this notice subsequently acquired knowledge would be irrelevant.
The result is that the appeal fails and it is dismissed with costs.
Appeal dismissed.
[/INST]The appellant, a firm of Surat, had a branch at Bangkok, to which it exported cloth, and the branch also made purchases locally and sold them.
During the war the business of the branch had been in abeyance, but was re started after the termination of the hostilities.
in its return for the assessment year 1949 50 the appellant did not include any profit of the branch, but stated that the books of account of branch were not available, and therefore its profits might now be assessed on an estimate basis subject to 561 action under s.34 or 35.The assessment was made on the basis of profit at 5 % on the export to the branch appearing in the Surat books.
A similar estimate was made for year 1950 51.
For the year 1951 52 also the business profits of the branch were not shown but the Income tax officerissued a notice to the assessee to produce the relevant accountsand books.
The appellant excused itself by promising that in thefollowing year these accounts for the year 1950 would be produced.
Thereupon the Income tax Officer made an estimate of the sales of the branch and of the net profits at 5 % thereon, amounting to Rs. 37,500/ , and the same day he issued a notice to show cause why a penalty for concealment of the particulars of the income of 1951 52 should not be levied.
Subsequently, the Income tax Officer imposed a penalty of Rs. 20,000/ on it as its explanation was not acceptable.
In the meantime assessment proceedings for the year 1952 53 had commenced and the appellant adopted a similar attitude.
The Income tax Officer was insistent and, therefore, appellants had to produce the accounts and books of the branch, from which it appeared that for the year 1951 52 the appellant had made a profit of Rs. 1,25,520/ .
The Income tax Officer issued a further notice to the appellant to show cause why penalty should not be levied for deliberately concealing income for the year 1951 52.
Pursuant to this notice the Income tax Officer passed another order imposing a penalty of Rs. 68,501/ .
The appellant 's appeal to the Appellate Assistant Commissioner against both the orders of penalty was rejected.
On appeal, the Tribunal cancelled the first order of penalty but confirmed the second one.
This hereafter, the appellant obtained a reference to the High Court on the question: "Whether the levy of Rs. 68,501/ as penalty for concealment in the original return for the assessment year 1951 52 is legal?" The High Court answered the question in the affirmative.
On the appeal by special leave it was urged that the second order for penalty was illegal because there was one concealment and in respect of that a penalty of Rs. 20,000/ had earlier been imposed, that there was no jurisdiction to make the second order of penalty while the first order stood and for that reason the second order must be treated as a nullity; and that the fact that the first order was subsequently cancelled by the Tribunal would not set the second order on its feet for it was from the beginning a nullity as having been made when the first order stood.
Held: (i) The contentions must be rejected.
The Income tax Officer had full jurisdiction to make the second order and he would not lose that jurisdiction because he had omitted to recall the earlier order, though it may be that the two orders in respect of the same concealment could not be enforced simultaneously or stand together.
When the Income tax Officer ascertained the true facts and realised that a much higher penalty could have been imposed, he was entitled to recall the earlier order and pass another order imposing the higher penalty.
If he had omitted to recall the earlier order that would not make the second order invalid, 1 SCI/64 36 562 (ii)In the present case the earlier order having been cancelled and no objection to the cancellation having been taken, there is only one order, which is a legal order.
C.V. Govindarajulu Iyer vs Commissioner of Income tax, Madras, , distinguished.
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<s>[INST] Summarize the judgementAppeal No. 72 of 1952.
Appeal under articles 132 (1) and 133 (1) (b) of the Constitution of India from the Judgment and Order dated the 27th April, 1951, of the High Court of Judicature at Madras (Rajamannar C.J. and Satyanarayana Rao J.) in Civil Miscellaneous Petition No. 4697 of 1951.
M.K. Nambiyar (U. Sethumadhava Rao, with him) for the appellant.
M. Seshachalapathi for the respondent.
V.K.T. Chari, Advocate General of Madras (Porus A. Mehta and V.V. Raghavan, with him) for fife Intervener (State of Madras).
February 10.
The Judgment of the Court was delivered by DAs J.
This is an appeal arising out ' of a judgment delivered on the 27th April, 1951, by a Bench o15 the Madras High Court in C.M.P. No. 4697 of 1951 filed under article 226015 the Constitution for the issue of a writ of certiorari or other appropriate writ to call 780 for the records and quash the order of the Government passed under section 4(1) of the Madras Act XLIII of 1949 declaring the undertaking of the appellant company to vest in the Government.
The appellant company was formed and registered under the Indian Companies Act in 1924 with the object, inter alia, of generating and supplying electrical ,energy to the public in Rajahmundry.
In 1949 the Madras Legislature passed the Madras Electricity Supply Undertakings (Acquisition) Act, 1949.
The Act received the assent of the Governor General on the 18th January, 1950, and was published in the Official Gazette on the 24th January, 1950.
Upon the Constitution of India coming into force on the 26th January, 1950, the Act was submitted to the President for his certification and on the 12th April, 1950, the President certified that the Act should not be called in question m any court on the ground that it contravened the provisions of clause (2) of article 31 or it contravened the provisions of sub section (2) of section 299 of the Government of India Act, 1935.
By an order in writing made on the 2nd September, 1950, the Government of Madras acting under section 4(1) of the Act declared that the undertaking of the appellant company should vest in the Government on the date specified therein.
Under the proviso to section 4(1) the Government from time to time postponed the date of vesting and the 2nd April, 1951, was the last extended date fixed for such vesting.
On the 29th March, 1951, the appellant company filed C.M.P. No. 4697 of 1951, under article 226 for quashing the order of the Government.
Shortly stated the contentions of the.
appellant before the High Court were that the Act was ultra vires in that (1) it was beyond the legislative competency of the Madras Legislature to enact it, (2) it was not enacted to subserve any public purpose, and (3) the compensation provided for was illusory.
The High Court repelled each and all of the aforesaid contentions of the appellant company.
It held that the legislation was with respect to electricity under entry 31 of the 781 concurrent list in the seventh Schedule to the Government of India Act, 1935, and was not a legislation with respect to corporations under entry 33 in list I as contended by the appellant and that, therefore, the Madras Legislature was competent to enact it.
It further held that the Act having received the certificate of the President the challenge based on an alleged absence of public purpose or the illusory nature of the compensation was shut out and could not be raised.
The High Court, however, held that certain sections and rule 19(2) of the Rules framed under the Act were invalid and subject thereto dismissed the application of the appellant company.
The High Court granted leave to the appellant company to appeal before this court.
The appeal has now come up for heating before us.
Learned counsel appearing in support of the appeal has not pressed before us the contention raised in the High Court as to the absence of public purpose or the illusory nature of the compensation provided by the Act.
He has confined his submissions to the question of the legislative competency of the Madras Legislature to enact this piece of legislation.
In the High Court the contest centered round the question whether the Act was a law with respect to electricity under entry 31 of the concurrent list or with respect to corporations under entry 33 in list I. The High Court held that the Act was, in pith and substance, a law with respect to electricity and was, therefore, within the legislative competency of the Provincial Legislature.
In his arguments before us learned counsel contended that the act is in substance and effect one for the acquisition of an electrical undertaking and, as such, is ultra vires because (a) the acquisition of an electrical undertaking was not a legislative item in any of the three lists in the seventh schedule to the Government of India Act, 1935, and (b) in so far as it relates to the acquisition of an electrical undertaking of a corporation it is a law with respect to corporations under entry 33 in list I. 782 In our opinion this appeal can be disposed of on the first of the two grounds mentioned above.
Turning to the Act it will be noticed that the long title of the Act is "an Act to make provision for the acquisition of undertakings in the Province of Madras supplying electricity.
" The preamble recites the expediency of making Provision "for the acquisition of undertakings in the Province of Madras engaged in supplying electricity.
" Section 1 gives the short title, extent and commencement of the Act.
Section 2 is a definition section.
Section 3 provides that the Act shall apply to all undertakings of licensees including certain undertakings therein mentioned.
Section 4 empowers the Government to take over any undertaking by making an order in writing declaring that such undertaking shall vest in the Government on a specified date.
Section 5 provides for compensation payable to a licensee who is not a local authority.
The section gives an option to the licensee to claim compensation on one of three bases therein specified.
Section 6 deals with compensation payable where the licensee is a local authority.
Section 7 specifies the properties or assets which will vest according aS compensation is claimed under one basis or another.
Section 8 provides for the appointment of a sole representative to act as the sole and accredited representative of the licensee in connection with the handing over of the undertaking and performing on behalf of the licensee the functions thereinafter specified.
The choice of basis of compensation is to be made within one month under section 9 and such choice once intimated to the Government is not to be open to revision except with the concurrence of the Government.
Section 10 authorises the Government, in case the licensee has disposed of any of the assets otherwise than in the normal course of events causing loss to the Government as succeeding owners, to deduct from the compensation payable to the licensee an amount which they consider to be the loss sustained by them.
Section 11 prescribes the various deductions which the Government shall be entitled to make from the compensation payable under the Act.
The manner of 783 payment or deposit of compensation is laid down in section 12.
Section 13 permits the Government to repay all loans, debentures, mortgages and the like outstanding on the vesting date at any time before the time fixed for repayment.
Section 14 is the arbitration section.
Section 15 provides for the termination of the managing agency.
Section 16 authorises the Government to terminate the services of any person on the staff of the licensee immediately before the vesting 'date.
Section 17 requires all licensees to prepare and hand over to the Government a complete inventory of all the assets.
Section 18 gives power of entry to the Government or any officer authorised by the Government upon any land or premises in the possession of the licensee.
Section 19 prescribes penalties for various defaults therein specified.
Section 20 makes certain officers of a company liable for the offence committed by the company.
Section 21 gives protection against suit or prosecution for anything done in good faith under any rule or order made under the Act.
Section 22 confers rule making power on the Government.
Section 23 provides that the provisions of certain Acts in so far as they are inconsistent with the provisions of this Act shall have no effect.
Section 24 gives power to the Government to do anything which appears to them necessary for the purpose of removing any difficulty.
From the above summary it will be noticed that the Act does not purport to make any provision for the granting of licenses or maintenance of works for generating or transmitting energy or for supplying electrical energy as one would expect to find in a law dealing with electricity nor does the Act purport to make any provision for the incorporation, regulation or winding up of trading corporations.
On the contrary, it is abundantly clear from the long title, the preamble and the sections that it is, in pith and substance, nothing but an Act to provide for the acquisition of electrical undertakings.
Section 299 (2) of the Government of India Act, 1935, provided that neither the Federal nor a Provincial Legislature would have power to make any law authorising the compulsory acquisition for public purposes 784 of any land or any commercial or industrial undertaking or any interest in or in any company owning any commercial or industrial undertaking unless the law provided for the payment of compensation for the property acquired.
Compulsory acquisition of property is undoubtedly an important sovereign right of the State but this right has to be exercised under a law.
The legislative power of the State was distributed by sections 99 and 100 amongst the Federal Legislature and the Provincial Legislatures in the manner provided ' in the several lists set forth in the Seventh Schedule to the Act.
Section 100 read with entry 9 in list II authorised the Provincial Legislature to make a law with respect to compulsory acquisition of land.
There was no entry in any of the three lists relating to compulsory acquisition of any commercial or industrial undertaking, although section 299 (2) clearly contemplated a law authorising compulsory acquisition for public purposes of a commercial or industrial undertaking.
The acquisition of a commercial or industrial undertaking not being the subject matter of any entry in any of the three legislative lists, neither the Federal Legislature nor the Provincial Legislature could enact a law with respect to compulsory acquisition of a commercial or industrial undertaking.
Under section 104, however, the Governor General, in his individual discretion, could, by public notification, empower either the Federal Legislature or a Provincial Legislature to enact a law with respect to any matter not enumerated in any of the lists in the seventh schedule to the Act.
It is, therefore, clear that although Parliament expressly entrusted the Provincial Legislature with power to make a law with respect to compulsory acquisition of land it did not straightaway grant any power, either to the Federal Legislature or the Provincial Legislature, to make a law with respect to compulsory acquisition of a commercial or industrial undertaking but left it to the discretion of the Governor General to empower either of the Legislatures to enact such a law.
There is no suggestion that the Governor General had, in exercise of his discretionary powers under section 104, authorised the Madras 785 Legislature to enact the impugned Act and, therefore, the Act was, prima facie, beyond the legislative competency of the Madras Legislature.
The learned Advocate General of Madras urges that there was implicit in every entry in the legislative lists in the Seventh Schedule to the Government of India Act, 1935, an inherent power to make a law with respect to a matter ancillary or incidental to the subject matter of each entry.
His argument is that each entry in the list carried with it an inherent power to provide for the compulsory acquisition of any property, land or any commercial or industrial undertaking, while making a law under such entry.
It is quite true that the powers of each Legislature to make laws with respect to the different subjects assigned to it by the, appropriate list were to be regarded as wide and plenary and also covering matters incidental or ancillary to such subject matter, but it is, nevertheless, clear from the provision of the Act that the power to make a law for compulsory acquisition was, under entry 9 in list II, given only to Provincial Legislatures and that such power of the Provincial Legislatures was, under that entry, limited to making a law for the compulsory acquisition of land only and that unless the Governor General made an .order under section 104 of the Act the Provincial Legislatures had no power to make a law for the compulsory acquisition of any property other than land ,and that the Federal Legislature had no power to make any law with respect to the compulsory acquisition of any property at all.
If the argument of the learned Advocate General were correct then entry 9 in list II 'was wholly unnecessary for under entry 21 in list II the Provincial Legislatures could make a law for the compulsory acquisition of land.
A similar argument was repelled by this court in the State of Bihar vs Maharajadhiraja Sir Kameshwar Singh( ).
The matter is placed beyond any doubt or dispute by the provisions of section 127 of the Government of India Act, 1935, which provided that the Federal might, if it ,deemed it necessary to acquire any land situate in a (1) 786 Province for any purpose connected with a matter with respect to which the Federal Legislature had power to make laws, require the Province to acquire the land on behalf and at the expense of the Federation.
If power ' inhered in the Federal Legislature to make a law for the acquisition of any property for any purpose connected with a matter with respect to which it had ' power to make laws then section 127 would not have ' been necessary at all.
The absence of any entry empowering any Legislature to make laws with respect to compulsory acquisition of a commercial or industrial undertaking and the provisions of section 127 to, which reference has just been made make it abundantly clear that the contentions urged by the learned ' Advocate General cannot possibly be sustained.
In our opinion, therefore, it must be held that the Madras Legislature had no legislative competency to enact the impugned law.
This is sufficient to dispose of this appeal and it is not necessary to express any opinion, on the other points raised in the court below.
The result, therefore, is that this appeal must be ' allowed with costs both in the High Court as well as in this court.
Appeal allowed.
Agent for the intervener: R.H. Dhebar.
[/INST]The petitioner, the editor of a newspaper, was detained under r. 30(1)(b) of the Defence of India Rules, 1962.
He filed a petition under article 32 of the Constitution for a writ of habeas corpus challenging the legality of the detention order on various grounds.
Dismissing the petition, HELD:Rule 30 (1) (b) cannot be said to be ultra vires of section 3 (2) (15)(i) of the Defence of India Act for the reason that it does not state that the satisfaction of the authority making the order of detention has to be on grounds appearing to it to be reasonable.
The rule requires only that the detaining authority must be satisfied that the detention is necessary for the purposes mentioned and that is what the latter part of the section under which it was made also says.
This part does not contain any requirement as to satisfaction on reasonable grounds.
The rule has clearly been made in terms of the section authorising it.
[211 F] Article 352 of the Constitution does not require the proclamation to state the satisfaction of the President about the Emergency.
The Article requires only a declaration of emergency threatening the security of India by one of the causes mentioned.
The words "to that effect" can have no other meaning.
A proclamation ceases to have effect only by one of the events mentioned in cl. 2 of article 352 of the Constitution.[212 C] Section 3(2)(15)(iv) of the Defence of India Act and r. 30 A of the Defence of India Rules, does not give a right to make a representation.
Their effect is to provide a review of the detention order by the authorities and in the manner mentioned.
Rule 23 of the Defence of India (Delhi Detenus) Rules, 1964, states that a detente will be allowed to interview a legal practitioner for the Purpose of drafting his representation against his detention.
[213 C D].
The fact that newspapers and men connected with them may be dealt with under other provisions of the Art and Rules does not prevent detention of such persons under r. 30(1)(b) of the Defence of India Rules.
[213 H] The order need not mention the part of India which was to be Prejudicially affected by the acts of the detenue.
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<s>[INST] Summarize the judgementvil Appeal No. 2086 (N) of 1978.
From the Judgment and Order dated 10.12.1976 of the Rajasthan High Court in D .B.
Civil Misc.
Appeal No. 73 of 1970.
C.M. Lodha and H.M. Singh for the Appellants.
B.R. Sabharwal, P.R. Ramasesh and H. Wahi for the Re spondents.
The Judgment of the Court was delivered by DUTT, J.
This appeal is directed against the judgment and decree of the Rajasthan High Court affirming the award made by the Motor Accident Claims Tribunal, Udaipur.
763 In the night between the 3rd and 4th December, 1966, Hari Singh, since deceased, the husband of the appellant No. 1 and the father of the appellant No. 2, hired an Ambassador car belonging to the.
Rajasthan Mahila Parishad for going to his native village at 'Kangeti in Madhya Pradesh from Udai pur in Rajasthan.
When the car had gone 21 miles from Udai pur, it collided with a truck coming from the opposite direction.
It skidded and hit against a tree.
As a result of the accident, Hari Singh died on the spot and one Shanker Lal who was also travelling in the same car and happened to be the friend of Hari Singh received some injuries.
At the time of his death, Hari Singh was only 25.
He left behind him his wife, the appellant No. 1 who was only 18 and the appellant No. 2, his daughter, then only a child.
The appellants filed a petition before the Motor Acci dent Claims Tribunal, Udaipur, claiming a sum of Rs. 1 lac as compensation.
The Tribunal came to the finding that the accident which resulted in the death of Hari Singh was due to the rash and negligent driving of the car.
The Tribunal disposed of the issue as to the claim of the appellants for compensation of Rs. 1 lac as follows: "Claimants of Case No. 3 of 1967 have claimed compensation of Rs. 1 lac which appears to be excessive.
In my opinion an amount of Rs. 10,000 would be adequate.
The issue is decided accordingly.
" The Tribunal has not given any reason why the claim of the appellants for compensation of Rs. 1 lac could not be accepted.
At this stage, it may be stated that the case of the Insurance Company which was the opposite party No. 3 before the Tribunal was that its liability was only up to a sum of Rs.4,000.
Issue No. 7 that was framed by the Tribunal relating to the liability of the Insurance Company is ex tracted below: "7.
Whether the liability of opposite party No. 3 cannot exceed Rs.4,000 in each case.
" The finding of the Tribunal on Issue No. 7 is as follows: "The learned counsel for the claimants conced ed that the liability of the Insurance Company could not exceed 764 Rs.4,000 in each case.
Issue is accordingly decided in favour of the Opposite Party No.3.
" Upon the said findings, the Tribunal made an award for Rs. 10,000 in favour of the appellants against the opposite parties including the Rajasthan Mahila Parishad and the driver of the truck assessing the liability of the Insurance Company to the extent of Rs.4,000 only.
Being aggrieved by the award of the Tribunal, the appel lants preferred an appeal to the Rajasthan High Court chal lenging only the adequacy of the amount of compensation as awarded by the Tribunal.
A cross objection was also filed by the Rajasthan Mahila Parishad, the owner of the car.
The High Court, as stated already, affirmed the award and dis missed the appeal and the cross objection.
Hence this appeal by special leave.
The first point that has been urged by Mr. Lodha, learned counsel appearing on behalf of the appellants, is that the High Court was not justified in affirming the award of the Tribunal for Rs. 10,000 only as compensation.
It appears from the evidence of the appellant No. 1 that the father of the deceased had a dairy farm, a poultry farm, a flour mill and an agricultural farm.
The deceased used to look after the business and his monthly income was about Rs. 1,000 and that out of the said income, about Rs.700 used to be spent and the total saving was only Rs.300 a month.
As against this evidence, no evidence was led by the respond ents regarding the income of the deceased.
The High Court, in affirming the award of the Tribunal as to the quantum of compensation observed as follows: "It appears to us from the evidence so led by the claimants that Hari Singh at the time of his death was in fact a student and may be that whenever he could spare time, he looked after the various business activities of his father which according to Rajendra Kumari are still running.
He had devoted himself to the family business and had no prospects whatever dependent upon education.
While estimating the benefits derived from the various business activities one cannot lose sight of the con tingencies of losses and fluctuations in income that occur in such types of business.
We do realise that the loss of a husband to a young Rajput girl is something which no amount of money can compensate, yet in the circum stances of the case, we do not find 765 that the amount of compensation fixed by the Tribunal was too high or too low.
We feel ' that it represents the just and proper compen sation.
" We are unable to understand the reasons given by the High Court in finding that the amount of compensation as awarded by the Tribunal was quite adequate.
The High Court has not disbelieved the evidence of the appellant No. 1 that her husband had an income of Rs. 1,000 a month.
It is true that Hari Singh was a student at the time of his death, but he was also looking after the business of his father and earning a sum of Rs. 1,000 a month.
There is no reason to disbelieve the evidence of the appellant No. 1 about the income of Hari Singh.
Even at the modest computation, the contribution of Hari Singh towards his family could not he less than Rs.500 per month, that is, Rs.6,000 per year.
Taking the normal span of life to be 60 years, Hari Singh would have lived for another 35 years.
It is apparent that the appellants have been deprived of more than a lac of rupees and, accordingly, their claim for Rs. 1 lac on account of compensation was quite reasonable.
Both the Tribunal and the High Court were not justified in assessing the amount of compensation pay able to the appellants at Rs. 10,000 only.
The next question is as to the liability of the Insur ance Company, the respondent No. 4 herein.
It has been already noticed that the appellants conceded before the Tribunal that the liability of the Insurance Company did not exceed the sum of Rs.4, '000.
Indeed, as the law stood at the material time, the maximum liability of the Insurance Compa ny in such a case was only to the tune of Rs.4,000.
In the appeal before the High Court, the appellants did not chal lenge the finding of the Tribunal that the statutory liabil ity of the Insurance Company was Rs.4,000 Only as conceded to by the appellants.
For the first time in this Court, it is submitted that the respondent No. 4 is liable for the entire amount of compensation.
It is urged by Mr. Lodha appearing for the appellants that it was incumbent upon the respondent No. 4 to file before the Tribunal the policy of Insurance in order to show that apart from the statutory liability up to Rs.4,000, the respondent No. 4 had no fur ther liability under the policy in excess of the statutory liability.
In support of the contention, much reliance has been placed by the learned counsel on a decision of this Court in National Insurance Co. Ltd. vs Jugal Kishore & Ors.
, In that case, it has been observed that where the Insurance Company concerned wishes to take a defence in a claim petition that its liability 766 is not in excess of the statutory liability, it.
should ' file a copy of the Insurance policy along with its defence.
This decision, in our opinion, is not applicable to the facts of the instant case.
It has been already noticed that before the Tribunal the appellants had categorically admit ted that the liability of the Insurance Company extended to Rs.4,000 only.
In the circumstances, we do not think that it was incumbent upon the Insurance Company to file the policy.
The contention made on behalf of the appellants is, accordingly, rejected.
In the result, we direct that the appellants are enti tled to a sum of Rs. 1 lac (Rupees one lac only) on account of compensation.
Out of the said sum, the Insurance Company, the respondent No. 4, is liable to pay Rs.4,000 only and the respondent Nos. 1, 2 and 3 including the Rajasthan Mahila Parishad are jointly and severally liable to pay to the appellants the remaining amount.
The respondent shall depos it the decretal amount to the extent of their respective liabilities in the Motor Accident Claims Tribunal, Udaipur, within two months .from date; in default, the decretal amount or so much thereof as will remain outstanding will bear interest at twelve per cent per annum till realisation.
The appeal is allowed.
The judgment and decree of the High Court are modified to the extent indicated above, There will be no order as to costs.
G.N. Appeal al lowed.
[/INST]Appellants 1 and 2 are the wife and daughter respective ly of the deceased who died in a road accident, while trav elling in a hired car, which collided with a truck.
He died on the spot.
At the time of his death he was 25.
Appellants filed a petition before the Motor Accident Claims Tribunal claiming a compensation of Rs.1 lac.
The Tribunal 's finding was that the accident was due to rash and negligent driving of the car.
Without giving reasons, the Tribunal awarded only Rs.10,000 against the owner of the car and the truck driver, and also assessed the liability of the Insurance Company to the extent of Rs.4,000.
Against the award the appellants filed an appeal to the High Court challenging the adequacy of the compensation awarded.
The owner of the car filed a cross objection.
The High Court affirmed the award and dismissed the appeal, as also the cross objection, stating that the compensation awarded was just and proper.
This appeal, by special leave, is against the High Court 's judgment affirming the Tribunal 's award.
On behalf of the appellants, it was contended that High Court was not justified in affirming the Tribunal 's award of only Rs. 10,000 as compensation.
Allowing the appeal, HELD: 1.
The appellants are entitled to a sum of Rs.l lac on account of compensation.
Out of this amount the Insurance Company, i.e., Respondent No. 4 is liable to pay Rs.4,000 and the other respondents are jointly and severally liable to pay to the appellants the remaining amount.
[766C] 762 2.
It is true that the deceased was a student at the time of his death, but he was also looking after the busi ness of his father and earning about Rs.l,O00 a month.
Even at the modest computation, the contribution of the deceased towards his family could not be less than Rs.500 per month, i.e. Rs.6,000 per year.
Taking the normal span of life to be 60 years, he would have lived for another 35 years.
It is apparent that the appellants have been deprived of more than a lac of rupees and, accordingly their Claim for Rs.l lac on account of compensation was quite reasonable.
Both the Tribunal and the High Court were not justified in assessing the amount of compensation payable to the appellants at Rs. 10,000 only.
[765B D] 3.
As the law stood at the material time, the maximum liability of the Insurance Company in such a case was only to the tune of Rs.4,000.
In the appeal before the High Court, the appellants did not challenge the finding of the Tribunal that the statutory liability of the Insurance Company was Rs.4,000 only as conceded to by the appellants themselves.
In the circumstances, it Was not incumbent upon the Insurance Company to file the policy.
[766A B] National Insurance Co. Ltd. vs Jugal Kishore & Ors., , distinguished.
[This Court directed that the decretal amount should be paid within two mouths and in case of default, it will bear interest at the rate of 12% per annum till realisation.] [766D]
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<s>[INST] Summarize the judgementCivil Appeal No. 34 of 1954.
Appeal from the judgment and decree dated July 2, 1951, of the Punjab High Court in Regular First Appeal No. 269 of 1945.
N. section Bindra, and Harbans Singh, for the appellant.
Gopal Singh, for the respondents.
November 3.
The Judgment of the Court was delivered by WANCHOO, J.
The suit out of which the present appeal arises has had a chequered history.
It was filed as far back as June 1943, the plaintiff being section Balwant Singh (hereinafter referred to as the respondent).
The main defendants were Kesar Singh and Jaswant Singh, of whom Kesar Singh will be referred to as the appellant hereinafter.
The suit was with respect to a house known as bunga Maharaja Sher Singh which is situate outside the tank around Sri Harmandir Saheb (hereinafter referred to as the Golden Temple) in Amritsar.
The case of the respondent was that he and his uncle who was made a defendant to the suit were managers of this bunga which was wakf property and that they and their ancestors had been in possession of it throughout.
There were proceedings before the Sikh Gurdwaras Tribunal established under the Sikh Gurdwaras Act, No. VIII of 1925, (hereinafter referred to as the Act) in 1933 with respect to this bunga.
The proceedings arose because a claim was put forward that the bunga was the property of the Golden Temple.
In those proceedings the appellant and the other defendant claimed the bunga.
The respondent also made a 327 claim to the bunga.
The proceedings were all consolidated and it was decided that the bunga was not the property of the Golden Temple; the claims of the appellant and the other defendant were also dismissed and the Tribunal held that the respondent and his uncle had the right to manage and supervise the bunga and were its managers.
There were appeals to the High court from that decision by the appellant and the other defendant which were dismissed with the result that the status of the respondent and his uncle as determined by the Tribunal was upheld.
Thereafter the respondent along with his uncle filed a declaratory suit against the appellant and the other defendant.
In that suit they were ordered to file a suit for possession.
Consequently the present suit was filed for possession and ejectment of the appellant and the other defendant.
The case for ejectment was based on the ground that the appellant and the other defendant were in possession of the bunga without any right.
They had been asked to deliver possession to the respondent but refused to do so and continued to treat the bunga, which was wakf property as their personal property.
The respondent therefore did not desire to keep the appellant and the other defendant as servitors to look after the bunga as they were claiming rights adverse to the wakf and consequently prayed for their ejectment and delivery of possession of the bunga to him and his uncle.
The suit was resisted by the appellant and the other defendant and it was contended that the respondent was not a descendant of Maharaja Sher Singh and was therefore not entitled to the management of the bunga.
It was denied that the bunga was wakf property.
It was also denied that the respondent and his uncle had ever anything to do with the bunga or were ever in possession of it as 328 managers.
It was further alleged that any decision of the tribunal against the appellant had no effect as the tribunal had no jurisdiction to give an decision and in any case the tribunal had given no decision in favour of the respondent and his uncle.
Further even if any decision was given in favour of the respondent and his uncle by the tribunal, it was not binding on the appellant as he was no party to those proceedings.
It was also claimed that the appellant was the owner of the bunga and in any case even if the bunga was wakf property the appellant was its hereditary manager and was entitled to its possession and could not be ejected by the respondent.
Finally, adverse possession was claimed against the respondent who was alleged to have never been in possession within 12 years before the suit was filed and in any case as the respondent 's application under section 25A of the Act had been dismissed in July 1935 he had no right to file a suit for possession thereafter.
On these pleadings, eight issues were framed by the trial court, which are as below: 1.
Whether the bunga in dispute is a wakf property founded by Maharaja Sher Singh, or any descendant of Maharaja Sher Singh? 2.
Is the plaintiff a descendant of Maharaja Sher Singh, and is therefore entitled to get possession of the bunga in dispute as a manager? 3.
Is the plaintiff entitled to bring this suit alone? 4.
Is the suit within time? 5.
Is the suit barred under section 92 Civil Procedure Code? 6.
Are the defendants debarred from denying the plaintiff 's title in view of the judgments.
329 of the Lahore High Court and the decision of the Sikh Gurdwaras Tribunal? 7.
Has the plaintiff relinquished his right and what is its effect? 8.
Relief? In the trial court, the parties agreed that the decision might be given only on issues 3 to 7 and issues Nos. 1 and " might be left undecided.
Consequently, the trial court Proceeded to decide issues 3 to 7 only.
It held on issue No. 3 that the respondent was entitled to bring the suit alone.
On issue No. 4, the trial court held that the suit was barred by time.
Issue No. 5 was not pressed and was therefore decided against the appellant.
On issue No. 6 the trial court was of the view that it was not necessary to give any finding on it in view of the finding on the question of limitation; even so it held that the defendants were debarred from denying the plaintiff 's title in view of the judgment of the Lahore High Court and the decision of the Tribunal.
On issue No. 7 it held that in view of the decision of the tribunal and judgment of the High Court it could not be said that the respondent had relinquished his rights.
In the result, the suit was dismissed on the ground of limitation.
The respondent then went in appeal to the Punjab High Court.
The High Court held on the question of limitation that the suit was not barred by time.
It then referred to the decision of the tribunal which had held that the bunga was wakf property founded by Maharaja Sher Singh and held that this decision of the tribunal was binding and conclusive.
It was of the view that the question whether the respondent was the descendant of Maharaja Sher Singh and therefore entitled to obtain possession of the bunga which was the subject matter of issue No. 2 should have been decided.
It therefore accepted the appeal and set aside the order of the trial court on the question of limitation 330 and remanded the case for the decision of issue No. 2 as framed by the trial court and further framed two additional issues and directed the trial court to decide them also.
These additional issues were: 1.
Was Jaswant Singh a bungai or a servitor of the plaintiff and defendant No. 3 or their ancetors? 2.
Can the plaintiff dispossess the defendants on any of the grounds specified in paragraph 4 of the plaint? On remand the trial court held against the respondent on issue No. 2.
Its finding was that it had not been proved that the respondent was the eescendant of Maharaja Sher Singh and therefore entitled to get possession of the bunga in dispute as manager.
On the first additional issue, the trial court found that the appellant and the other defendant were servitors or bungais.
On the second additional issue it was found that a bungai or servitor if he denies the title of the rightful owner on whose behalf he manages the property forfeits his rights to retain the property or to continue as servitor, and as the appellant and the other defendant had set up a title adverse to the respondent, they would be liable to ejectment on the ground specified in para 4 of the plaint, if the respondent is the rightful owner, whether as trustee or otherwise, of the bunga.
On receipt of these findings, the appeal was heard again, this time by another Bench of the High Court, The High Court pointed out that issue No. 6 had not been decided on the earlier occasion and took the view that if issue No. 6 were decided in favour of the respondent it would not be necessary to go into the question whether the respondent was the descendant of Maharaja Sher Singh and therefore entitled to sue for ejectment.
The High Court therefore addressed itself to the decision of 331 issue No. 6 and held that in view of the judgment of the Lahore High Court and the decision of the tribunal, the appellant and the other defendant were debarred from denying the respondent 's title as a descendant of Maharaja Sher Singh.
In that view of the matter it held that the suit must succeed as the question of limitation had been decided against the appellant and the other defendant and it was not open to go into the question whether the respondent was a descendant of Maharaja Sher Singh and therefore entitled to maintain the suit.
The appeal was therefore allowed and the suit was decreed.
The appellant then applied for leave to appeal to this Court, which was granted; and that is how the matter has come up before us.
The appeal came up for hearing before this Court in 1958.
This Court then took the view that it was difficult to decide the appeal satisfactorily without having a finding on the essential issue, namely, whether the plaintiff was a descendant of Maharaja Sher Singh and therefore entitled to get possession of the bunga in dispute as a manager.
This Court therefore directed the High Court to record a finding on issue No. 2 and also on the two additional issues framed by the High Court when the remand was made on an earlier occasion.
The appeal has now come up for hearing again after the findings of the High Court, which are that the respondent has not been proved to be the descendant of Maharaja Sher Singh and that the appellant and the other defendant were in possession of the bunga as bungais or sewadars and that they were liable to ejectment because they had denied the title of the rightful owner on whose behalf they were managing the property.
In effect the High Court confirmed the findings of the trial court on remand.
Before we go into the effect of the findings now submitted by the High Court on the direction of this court, it is in our opinion necessary to decide issue No. 6, for if that issue is decided in favour of 332 the respondent it will not be open to the appellant or the other defendant to question that the respondent was the descendant of Maharaja Sher Singh and consequently had the right to maintain the suit.
That brings us to the consideration of the effect of the decision of the tribunal and the judgment of the Lahore High Court in appeal therefrom, which in its turn requires a consideration of the provisions of the Act.
The Act was passed to provide for the better administration of certain Sikh Gurdwaras and for inquiries into matters and settlement of disputes connected therewith.
Section 3 (1) of the Act provides for forwarding by any Sikh or any present office holder of a Gurdwara, specified in Sch.
I, of a list of all rights, titles or interests in immovable properties situate in Punjab and in all monetary endowments yielding recurring income or profit received in Punjab which he claims to belong, within his knowledge, to the gurdwara along with the name of the person in possession of any such right, title or interest.
On receiving such lists, the State Government has to publish, inter alia, under section 3 (2) a consolidated list in which all rights, titles and interests in such properties as are described in sub s.(1) are included and also to send by registered post a notice of the claim to each of the persons named therein as being in possession of such right, title or interest.
Section 5 (1) then provides that any person may forward to the State Government a petition claiming a right, title or interest in any such property included in such consolidated list within a certain time of its publication.
Sub section (3) then lays down that if no claim is made under section 5 (1) within the time limited thereby, the State Government shall publish a notification declaring that no such claim has been made with respect to the property notified under section 3 (1).
Sections 7 and 10 make similar provisions with respect to gurdwaras which are not included in Sch.
I to the Act; but we 333 are not concerned with them in the present appeal for the Golden Temple is included in Sch.
I and sections 3 and 5 apply to it.
Section 12 then provides for setting up of a tribunal.
Section 14 gives power to the State Government to forward to the tribunal all petitions received by it under the provisions of section 5 and other sections and the tribunal has to dispose of such petitions in accordance with the provisions of the Act.
Section 15 is important and may be read in extenso "(1) In disposing of any matter in which it has jurisdiction a tribunal may order any dispute arising therefrom to be dealt within one proceeding separately or more such disputes than one to be dealt with in one proceeding, and may, by public advertisement or otherwise, enquire if any person desires to be made a party to any proceeding, and may join in any proceeding any person who it considers ought to be made a party thereto.
(2) The tribunal may order any person to submit within a fixed time a statement in writing setting forth the nature of his claim or objection and the grounds thereof.
(3) If any person fails to comply with an order passed under the provisions of subsection (2) and duly notified to him, the tribunal may decide the matter in dispute against him, provided that the tribunal may at any time extend the time fixed by its order for the submission of the statement if the person satisfies it that he had sufficient cause for not submitting the statement within the time fixed.
(4) A tribunal may pass any such order as to costs of a proceeding as a court might pass under the provisions of the Code of Civil Procedure, 1908.
" 334 Then comes section 25A which lays down that when it has been decided under the provisions of the Act that a right, title or interest in immovable property belongs to a notified Sikh Gurdwara, or any person, the Committee of the Gurdwara concerned or the person in whose favour a declaration has been made may, within a period of one year from the date of the decision or the date of the constitution of the Committee, whichever is later, institute a suit before a tribunal claiming to be awarded possession of the right, title or interest in the immovable property in question as against the parties to the previous petition, and the tribunal shall, if satisfied that the claim relates to the right, title or interest in the immovable property which has been held to belong to the Gurdwara, or to the person in whose favour the declaration has been made, pass a decree for possession accordingly.
Section 26 then inter alia lays down that when it has been decided, under the provisions of the Act, that a right, title or interest in immovable property belongs to a Notified Sikh Gurdwara or when a right, title or interest in such property has been included in a list published under the provisions of section 5 (3), the Collector of the district in which the property is situated shall, on application being made to him on this behalf and after making such enquiry as he may deem proper into the fact of such decision or inclusion, cause an entry to be made in the records of rights, if any, of the estate in which the property is situated recording the gurdwara as the owner of the right, title or interest in accordance with the provisions of the Punjab Land Revenue Act, 1887.
Section 28 then provides for a suit for possession in respect of properties in which no claim has been made under section 5 or section 10.
Section 34 (1) gives a right of appeal to the High Court to any party aggrieved by a final order passed by the tribunal determining any matter decided by it under the provisions of the Act.
Section 36 and 37 are important and may be read in extenso.
335 "36.
No suit shall lie in any court to question anything purporting to be done by the State Government or by a tribunal in exercise of any powers vested in it by or under this Act." "37.
Except as provided in this Act no court shall pass any order or grant any decree or execute wholly or partly, any order or decree, if the effect of such order, decree or execution would be inconsistent with any decision of a tribunal, or any order passed on appeal therefrom, under the provisions of this Part.
" It is clear therefore from the scheme of the Act that it gives jurisdiction to the tribunal to decide all claims to properties which are claimed to be the properties of a Sikh Gurdwara mentioned in Sch.
I to the Act.
It is true that where a property in notified in the list under section 3 each person who has a claim to that property has to make a separate claim on his own behalf which is forwarded to the tribunal for decision.
It is clear however from the provisions of section 15 that where a tribunal is dealing with a property which is claimed to belong to a Sikh Gurdwara and in respect of which counter claims have been made by other persons, it has jurisdiction to decide to whom that property belongs, whether to the Sikh Gurdwara or to any other person claiming it and for that purpose it can consolidate the proceedings resulting from different claims to the same property so that all dispute with regard to that property can be decided in one consolidated proceeding.
Further it has the power under section 15 to inquire by public advertisement or otherwise if any person desires to be made a party to any proceeding and may join in any proceeding any person who it considers ought to be made a party there to.
Where therefore a number of claims have been made under section 5 to the same property which is claimed under section 3 336 to belong to a Sikh Gurdwara the tribunal can consolidate all such claims under section 15 and treat all the claims as one proceeding.
Where therefore the tribunal consolidates the claims in one proceeding each claimant even though he had made a claim for himself as against the Sikh Gurdwara would be entitled under section 15 to contest the claim not only of the Sikh Gurdwara but of any other person who is making a rival claim to the property as against the Sikh Gurdwara.
It is also clear from section 25A that in deciding the claims made under section 5 it is open to the tribunal not only to decide whether the property to which claims have been made belongs to the Gurdwara but also to decide whether it belongs to any of the claimants.
It seems therefore that the Act has given full power to the tribunal to decide between the rival claims of the Sikh Gurdwara and other claimants under section 5 and empowers it not only to give a decision as to the rights of the Sikh Gurdwara but also of other claimants.
Further there is provision in section 34 of the Act for appeal to the High Court by any party aggrieved by a final order passed by a tribunal in matters decided by it under the provisions of the Act.
The words in section 34 (1) are very wide and where claims are consolidated in one proceeding under section 15 and the claim of the Gurdwara and the rival claims of various claimants under section 5 with respect to one property are decided in a consolidated proceeding, it is clear that any party who was party to the consolidated proceeding would be entitled to appeal against the order of the tribunal if it went against it and was in favour of the Sikh Gurdwara or of any other claimant in the consolidated proceeding.
Section 36 thereafter bars a suit in any court to question any decision of a tribunal in exercise of any powers vested in it by or under the Act.
Section 37 bars any court from passing any order or granting any decree or executing wholly or partly any order or decree, if the effect of such order, or decree or execution would be 337 inconsistent with any decision of a tribunal or any order passed on appeal therefrom under the provisions of the Act.
It is on this scheme of the Act that we have to see whether it is open to the appellant and the other defendant to raise the question in the present suit that Balwant Singh was not the descendant of Maharaja Sher Singh and therefore not entitled to maintain the present suit.
It is necessary for this purpose to examine the order of the tribunal which was made on June 22, 1933, by a majority of two to one.
It is not in dispute that this bunga was notified under section 3 of the Act as property claimed by the Golden Temple.
This notification led to four claims with respect to this bunga, namely, by Jaswant Singh who was a party to the suit from which the present appeal has arisen, Darbara Singh and others with whom we are not concerned, Kesar Singh appellant and Balwant Singh respondent.
The tribunal consolidated all the four claims under section 15 of the Act and dealt with the matter in one proceeding.
The case of Jaswant Singh was that he was in possession of the first storey of the bunga by virtue of his perpetual rights of possession and management in the bunga as bungai.
Kesar Singh 's case was that he was in possession of two rooms on the first and second floors of the bunga.
He did not define what his right was but denied that the bunga was wakf.
Balwant Singh 's case was that the bunga was built by his ancestors for spiritual and wordly benefit of their offspring and was in his possession and that of his ancestors and should be declared to be the property of his family.
All these three claimants denied that the Golden Temple had any kind of right in the bunga.
In the consolidated proceeding therefore the tribunal had to decide firstly whether the bunga was the property of the Golden Temple.
If it decided that, all the claims would necessarily fall 338 through.
But if it held that the bunga was not the property of the Golden Temple it had to adjudicate on the respective claims of Jaswant Singh, Kesar Singh and Balwant Singh.
By majority, the tribunal held that the bunga was not the property of the Golden Temple.
It therefore had to decide to which of the three claimants under section 5, if any, the bunga could be held to belong.
It negatived the claims of Kesar Singh and Jaswant Singh.
As to Balwant Singh 's claim it held by a majority that Balwant Singh had no personal or private right in the bunga.
It further held that the bunga was wakf property dedicated to the pilgrims to the Golden Temple and that the descendants of Maharaja Sher Singh were the managers of the bunga.
It is clear from the decision of the majority of the tribunal that the descent of Balwant Singh from Maharaja Sher Singh was not disputed before the tribunal either by the Golden Temple or by any other party.
It is clear therefore that the tribunal had jurisdiction to decide the rights to the bunga, as it was one of the properties notified under section 3.
It had also the jurisdiction to determine all claims made under section 5 and it consolidated all the claims into one proceeding and decided the rights of the claimants and the Golden Temple in that Proceeding.
Now the respondent was claiming in those proceedings that he was the owner of the bunga as the descendant of Maharaja Sher Singh.
Neither the Golden Temple nor the other claimants seem to have challenged the claim of the respondent before the tribunal on the ground that he was not a descendant of Maharaja Sher Singh and therefore had no right to maintain the claim.
The whole proceeding before the tribunal was conducted on the basis that the respondent was a descendant of Maharaja Sher Singh and the only question was whether as such descendant he had a right to the property.
The tribunal nagatived his claim of ownership of the bunga and held that it was wakf property under the management of the descendants or Maharaja Sher Singh.
339 It has been urged that the order of the tribunal does not mention in the operative part that Balwant Singh was entitled to manage the property as the descendant of Maharaja Sher Singh and this shows that though the tribunal was of opinion that the descendants of Maharaja Sher Singh were entitled to manage the bunga it was not accepting Balwant Singh 's claim as such descendant and there was thus no decision in favour of Balwant Singh.
We cannot accept this contention, for if Balwant Singh was not a descendant at all of Maharaja Sher Singh and if this point was raised by anybody before the tribunal his claim would have failed on the simple ground that he was nobody to put forward the claim of the descendants of Maharaja Sher Singh.
The reason why the tribunal used the words "that the descendants of Maharaja Sher Singh are managers of the bunga" appears to be that at that time the father of Balwant Singh was alive and in the presence of his father Balwant Singh could not claim a right to manage the bunga.
Therefore the tribunal used neutral words, namely, "the descendants of Maharaja Sher Singh are managers of the bunga", instead of mentioning Balwant Singh as the manager of the bunga.
This is clear from an earlier part of the decision of the tribunal where in dealing with the question of ownership of Balwant Singh, it has remarked that "it is hard to see that Balwant Singh has any personal or private rights over the bunga in the presence of his father Raghbir Singh".
Though therefore the respondent was held by the majority of the tribunal, not to have rights in himself because his father was alive the tribunal nevertheless went into the question of the rights of Maharaja Sher Singh 's descendants at the instance of Balwant Singh treating him as a representative of the descendants.
This is also clear from the form in which the issue No. 3 was framed, namely, "was the bunga in dispute built by Maharaja Sher Singh, ancestor of Balwant Singh petitioner in 1629, and has been in his possession ? What rights as he been exercising over it ?" It is 340 clear therefore that before the tribunal Balwant Singh 's claim as a descendant of Maharaja Sher Singh was not challenged by the appellant or the other defendant; and the tribunal found in favour of the descendants of Maharja Sher Singh at the instance of Balwant Singh.
It was in our opinion open to the appellant and the other defendant to challenge this finding in favour of the descendants of Maharaja Sher Singh at the instance of Balwant Singh under section 34 of the Act as all the claims were consolidated under section 15 and treated as one case relating to one property.
But though the appellant and the other defendant went in appeal to the High Court they do not seem to have challenged the finding of the tribunal in favour of the descendants of Maharaja Sher Singh.
Further the Golden Temple also went in appeal; but it also did not challenge the decision in favour of the descendants of Maharaja Sher Singh.
That decision has therefore become final and according to that decision the descendants of Maharaja Sher Singh are the managers of this bunga.
That decision was given at the instance of the respondent whose claim in those proceedings based on his being a descendant of Maharaja Sher Singh was never challenged on the ground that he was not the descendant of Maharaja Sher Singh.
The question therefore that arises is whether in view of sections 36 and 37 of the Act it would be open to any court now to give a decision which will go against what has been held in that decision of the Tribunal.
If a court cannot give a decision which would go against the decision of the Tribunal in 1933, it would obviously be not open to a party to those proceedings to raise any question which would have the effect of questioning the decision of the Tribunal.
Section 36 bars any court from questioning anything done by a Tribunal in exercise of the powers vested in it by or under the Act.
Section 37 bars any court from passing any order 341 or granting any decree or executing wholly or partly any order or decree if the effect of such order, decree or execution would be inconsistent with any decision of the tribunal or any order passed on appeal therefrom under the provisions of the Act.
Now the decision of the tribunal which became final as it was not appealed from either by the Golden Temple or by the appellant or the other defendant was that the bunga was wakf property under the management of the descendants of Maharaja Sher Singh and this decision was given at the instance of the respondent who claimed in those proceedings to be a descendant of Maharaja Sher Singh and this claim of his to be a descendant of Maharaja Sher Singh was never disputed.
If therefore the Court now holds at the instance of the appellant or the other defendant that the respondent is not the descendant of Maharaja Sher Singh it will be questioning the decision of the tribunal and passing an order or granting a decree which would be inconsistent with the decision of the tribunal.
Section 36 and 37 bar any such order or decree by the court and therefore the appellant and the other defendant are naturally debarred from raising point the decision of which is barred under sections 36 and 37 of the Act.
We are therefore of opinion that the view taken by the High Court in its judgment after remand on issue No. 6 is correct and it is not open to the appellant to raise the question whether the respondent is a descendant of Maharaja Sher Singh and as such entitled to maintain the present suit.
This brings us to the question of limitation, which was decided by the High Court on the earlier occasion when the remand was made.
The case of the appellant in that connection is that he was in adverse possession and the respondent had been out of possession for over 12 years before the suit was filed in 1943 and therefore the suit should be dismissed as barred under article 144 as well as article 142 342 of the Limitation Act.
The appellant contends that the plaint itself shows that the respondent had been dispossessed more than 12 years before the present suit was filed and therefore the suit must fail on the ground of limitation.
We agree with the High Court however that a careful reading of paras.
3 and 4 of the plaint shows that the respondents case was that he and his uncle were managers of the bunga as descendants of Maharaja Sher Singh and that the appellant and the other defendant were in possession as their servants or servitors.
But these servants had started denying the title of the respondent and his uncle they do not want to keep them any longer in their service.
They therefore filed the suit for ejectment of these servants and for possession of the property.
The High Court therefore was right in the view it took that it was a case of permissive possession arising in favour of the appellant and the other defendant.
Whatever may be the position about the actual possession, it appears from the decision of the tribunal that the claim of the appellant and other defendant before the tribunal in 1933 was that they were bungais i.e. servitors; and this was also the view of the High Court in the appeal from the decision of the tribunal where the High Court said that "no doubt Kesar Singh, his father and grandfather have been Bungais of the bunga, but there is no reliable evidence of their having set up a title adverse to the institution or that the nature of this bunga is exceptional." Similarly Jaswant Singh also claimed to be a mere bungai before the tribunal by virtue of his father being adopted by Natha Singh who was undoubtedly a bungai.
In these circumstances from the decision of the tribunal in favour of the respondent in 1933, it appears that no hostile title adverse to the respondent was ever set up by the appellant and the other defendant before that decision.
In consequence it cannot be said that adverse possession over 12 years has been established 343 before June 1, 1943 when the present suit was filed.
As originally the possession of the appellant and the other defendant was clearly permissive, there can be no question of the application of article 142 in the present case and the appellant could only succeed if he could prove adverse possession under article 144 for over 12 years.
The decision of the High Court on the question of limitation is correct.
Lastly, it is urged that the respondent had applied under section 25A to the tribunal but allowed that suit to be dismissed for default and therefore it was not open to him to file the present suit for possession.
It is enough to say that though this point was framed in the written statement no issue was framed with respect to it by the trial court.
When the matter was raised in the High Court on the first occasion it held that as no issue had been framed and no evidence had been led by the parties as to whether the cause of action was or was not the same and no copy of the plaint in the earlier proceeding had been filed the question whether the present suit was barred by virtue of O.IX.
of the Code of Civil Procedure could not be gone into and it must be held that it was not barred under O. IX.
In view of what the High Court has said we are of opinion that it is not open to the appellant to raise this point before us when he had failed to get an issue framed on it and no evidence was led in that behalf.
As the appellant cannot challenge that the respondent is the descendant of Maharaja Sher Singh the respondent would have a right to maintain the suit.
Further as the appellant and the other defendant are servitors and they have undoubtedly set up a title after the decision of the tribunal adverse to the respondents 's right as found by the tribunal, the respondent is entitled to eject the appellant and the other defendant, for servitors cannot claim to remain in possession after they set up an adverse title with respect to the property of 344 which they are servitors.
In view of our decision on issue No. 6, it is unnecessary to consider issue No. 2 on which a finding was called for by this Court by its interlocutory judgment in 1958.
The appeal therefore fails; there would be no order as to costs.
Appeal dismissed.
[/INST]The High Court set aside the Trial Court 's order of acquittal of the appellants and convicted them on a charge of murder under section 302 of the Indian Penal Code.
On appeal by the appellants by special leave ^ Held, that this Court in its earlier decisions emphasised that interference with an order of acquittal should be based only on "complying and substantial reasons" and held that unless such reasons were present an Appeal Court should not interface with an order of acquittal, but this Court did not try to curtail the powers of the appe11ate court under section 423 of the Code of Criminal Procedure.
Though in its more recent pronouncements this Court laid less emphasis on 105 "compelling reasons" the principle has remained the same.
That principle is that in deciding appeals against acquittal the Court of Appeal must examine the evidence with particular care and must also examine the reasons on which the order of acquittal was based and should interfere with the order only when satisfied that the view taken by the acquitting judge was clearly unreasonable.
Once the Court came to the conclusion that the view of the lower court was unreasonable that itself was a "compelling reason" for interference.
Once it was found that the High Court applied the correct principles in setting aside the order of acquittal this Court will not ordinarily interfere with the High Court 's order of conviction in appeal against acquittal o enter into the evidence to ascertain whether the High Court was right in its view of the evidence.
Only such examination of the evidence would ordinarily be necessary as is needed to see that the High Court approached the question properly and applied the principle correctly.
If the judgment of the High Court did not disclose a careful examination of the evidence in coming to the conclusion that the view of the acquitting court was unreasonable or if it appeared that the High Court erred on questions of law or misread the evidence or the judgment of the trial court, this Court would, unless the case was sent back to the High Court for re hearing, appraise the evidence for itself to examine the reasons on which the lower court based its order of acquittal and then decide whether the High Courts view that the conditions of the lower court was unreasonable, was correct.
If on such examination it appeared to the Court that the view of the acquitting court was unreasonable the acquittal would be set aside and if on the other had it appeared that the view was not unreasonable the order of acquittal would be restored.
Suraj Pal Singh vs State, , Ajmer Singh vs State of Punjab ; , Puran vs State of Punjab A.I.R. 1953 S.C. 459, Chinta vs State of M. P., Cr. A. No. 178 of 59 and Ashrafkha Haibatkha Pathan vs State of Bombay, Cr. A. No. 38 of 1960, referred to.
It was neither a rule of law nor of prudence that a dying declaration should be corroborated by other evidence before a conviction could be ba ed thereon.
Ram Nath vs state of M. P. A.l.
R. 1953 S.C. 420, referred to.
Khushal Ram vs State of Bombay, [l958] S.C.R. 552, followed.
A dying declaration did not become less credible if a number of persons were names are culprits 106 Khurshaid Hussain.
vs Emperor,(1941) 43 Cr.L.J.59, held erroneous.
</s>
|
<s>[INST] Summarize the judgementAppeal No. 507 of 1961.
Appeal from the judgment and order dated February 18, 1959 of the Rajasthan High Court in Civil Misc.
Case No. 10 of 1959.
section K. Kapur and B. R. G. K. Achar, for the appellant.
The respondent did not appear.
February 26, 1964.
The Judgment of the Court was delivered by SIKRI J.
This is an appeal directed against the judgment of the Rajasthan High Court, which granted a certificate under article 133(1)(c).
One Mukanchand, respondent No. 1 in this appeal (hereinafter referred to as the decree holder) obtained a mortgage decree on February 12, 1954, for Rs. 1,14,581 14 6, with future interest at 6 per cent per annum, against one Rao Raja Inder Singh (hereinafter referred to as the judgment debtor).
The mortgage money was advanced under three mortgages, and the mortgaged properties consisted of 2 Jagirs and some non jagir immovable property.
The latter property was sold in execution and Rs. 33,750/ paid to the decree holder in partial satisfaction of the decree.
On December 14, 1956, the decree holder filed an execution petition in the Court of the District Judge, Jodhpur, for Rs. 99,965 3 6, praying for attachment of the amount of compensation and rehabili tation grant which would be paid to the judgment debtor on account of resumption of his jagir.
This case was registered 906 as Execution Case No. 12/57.
On July 29, 1957, the judg ment debtor made an application before the District Judge, Jodhpur, to the effect that the decretal amount should be reduced in accordance with section 5 of the Rajasthan Jagirdars ' Debt Reduction Act (Rajasthan Act IX of 1957).
On July 31, 1957, the judgment debtor submitted another application claiming that only half of his total jagir compensation and rehabilitation grant money was liable to attachment under section 7 of the said Act.
The decree holder, in his reply to those petitions, urged that the provisions relied on were ultra vires the Constitution of India being in contravention of articles 14, 19 and 31 of the Constitution.
On December 3, 1957, the decree holder filed a petition under article 228 of the Constitution, praying that the execution case No. 12 of 1957, pending in the Court of the District Judge, Jodhpur, be withdrawn from that Court to the Rajasthan High Court.
The High Court transferred the case to its file, and thereafter issued notice to the State of Rajasthan, as the constitutionality of the said Act had been challenged.
By its judgment, the High Court held that apart from the latter part of section 2(e) excluding certain debts hereinafter referred to as the impugned part and section 7(2) of the Act, the rest of the Act was valid.
The State applied for leave to appeal to the Supreme Court, and so did the decree holder.
On the certificates being granted, two appeals were filed in this Court.
The appeal of Mukhanchand (Civil Appeal No. 508/61) was, by order dated April 23, 1962, of this Court, held to have abated.
Therefore, we are not concerned with the validity of the other provisions of the Act.
Although the validity of the other provisions is not now in question, it is necessary to set out the relevant provisions of the Act, because they have a bearing on the question of the validity of the impugned part of section 2 (e) and section 7 (2) of the Act; and these are reproduced below: "Preamble To provide for the scaling down of debts of jagirdars whose jagir lands have been resumed under the provisions of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952. . 907 section 2(e) "debt" means an advance in cash or in kind and includes any transaction which is in substance a debt but does not include an advance as aforesaid made on or after the first day of January.
1949 or a debt due to: (i) the Central Government or Government of any State; (ii) a local authority; (iii) a scheduled bank; (iv) a co operative society; and (v) a waqf, trust or endowment for a charitable or religious purpose only; or (vi) a person, where the debt was advanced on his behalf by the Court of Wards. section 3.
Reduction of secured debt at the time of passing of decree. (1) Nothwithstanding anything in any law, agreement or document, in any suit to which this Act applies relating to a secured debt, the court shall, after the amount due has been ascertained, but before passing a decree, proceed as hereinafter stated.
(2)(a) Where the mortgaged property consists exclusively of jagir lands and such lands have been resumed under the provisions of the Act, the court shall first ascertain whether the mortgagor had the right, under the jagir law in force at the time the mortgage deed was executed, to mortgage the jagir lands, or failing that, whether specific permission for effecting the mortgage was obtained from the competent authority, and whether the mortgage was validly subsisting on the date of resumption of the jagir lands.
(b) if the mortgage was legally and properly made and was validly subsisting on the aforesaid date, the court shall reduce the amount due in accordance with the formula given in Schedule 1. 908 (3) Where the mortgaged property consists partly of jagir lands as aforesaid and partly of property other than such lands, the court shall after taking action in accordance with the provisions of subclause (a) of sub section (2), proceed to distribute.
the amount due on the two properties separately in accordance with the principles contained in section 82 of the (IV of 1882) as if they had been properties belonging separately to two persons with separate: and distinct rights of ownership; and after the amount due has been so distributed, reduce the amount due on the jagir lands in accordance with the formula given in Schedule 1.
section 4 Powers to reduce secured debt after passing of decree. (1) Nothwithstanding anything in the Code of Civil Procedure, 1908 (V of 1908) or any other law, the court which passed a decree to which this Act applies relating to a secured debt shall, on the application either of the decree holder or judgment debtor, proceed as hereinafter stated.
(2) Where the mortgaged property charged under the decree consists exclusively of jagir lands and such lands have been resumed under the provisions of the Act, the court shall reduce the amount due in accordance with the formula given in Schedule 1.
(3) Where the mortgaged property charged under the decree consists partly of jagir lands and partly of property other than jagir lands, the court shall determine the amount due on the first day of January, 1949, and distribute the same on the two properties separately in accordance with the principles contained in section 82 of the (IV of 1882), as if they had been properties belonging to two persons with separate and distinct rights of ownership and after the 909 amount due as respect the jagir lands has been so calculated.
reduce it in accordance with the formula given in Schedule 1.
section 6 Satisfaction of the decree after the amount due has been reduced under and in accordance with the provisions of section 4, the decree shall, to the extent of the reduction so effected, be deemed, for all purposes and on all occasions, to have been duly satisfied.
section 7(2) Notwithstanding anything in any law, the reduced amount found in the case of a mortgagor or judgment debtor as the case may be, under section 3 or section 4 as respects mortgaged jagir lands shall not be legally recoverable otherwise than out of the compensation and rehabilitation grant payable to such mortgagor or judgment debtor in respect of such jagir lands.
" We may mention that respondent No. 1 has not entered appearance in this Court.
The learned counsel for the State, Mr. section K. Kapur, has urged that the High Court erred in holding that these two provisions, i.e. impugned part of section 2(e) and section 7(2), were void.
Regarding the impugned part of section 2(e), he contended that the debts mentioned in sub cls.
(i) to (vi) of section 2(e) have been placed on a different footing from debts due to other creditors, because the bodies and the authorities mentioned therein serve a public purpose or a public cause.
He urged that this provided a reasonable basis for differentiating between private creditors and creditors mentioned in cls.
(i) to (vi) above.
Regarding section 7(2), he urged that it imposed reasonable restrictions, in the interest of general public, on the creditors.
Before examining the validity of the impugned provisions, it is necessary to examine the scheme of the Act.
As the preamble states in plain terms, the object of the Act is to scale down debts of Jagirdars whose jagir lands have been resumed under the provisions of the Rajasthan Land Reforms and Resumption of Jagirs Act.
Clause (e) of section 2 defines 'debt ' to mean an advance in cash or in kind.
The definition ,does not embrace dues of Government or a local authority 910 in respect of taxes, land revenue, etc.
The definition then excludes from the purview of the Act debts due to Central Government and other authorities and bodies mentioned in the clause.
We shall advert to them later when discussing the validity of this exclusion.
Section 3 provides for reduction of secured debts in accordance with the formula given in Schedule 1 at the time of passing a decree, and their apportionment where necessary, between jagir and non jagir property.
Section 4 provides for reduction of secured debts after a decree has been passed.
Section 5 directs a court to pass a fresh decree after reduction of the secured debts.
Section 6 provides that after reduction of the secured debt in accordance with the provisions of section 4, the decree shall, to the extent of the reduction so effected, be deemed for all purposes and on all occasions to have been duly satisfied.
Clause (1) of section 7 provides for the execution of the decree against the compensation and rehabilitation grant payable in respect of the jagir lands of the judgment debtor.
Clause (2) of section 7, which has been struck down by the High Court, prohibits the recovery of the reduced amount with respect to jagir property from any property other than the compensation and rehabilitation grant payable to a jagirdar.
The effect of this provision is that the other properties of the jagirdar, existing or which 'he may acquire hereafter, are immune from being proceeded against in execution or otherwise.
We think that the High Court was right in holding that the impugned part of section 2(e) infringes article 14 of the Consti tution.
It is now well settled that in order to pass the test of permissible classification, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentiation which distinguishes persons or things that are to be put together from others left out of the group, and (2) that the differentia must have a rational relationship to the object sought to be achieved by the statute in question.
In our opinion, condition No. 2 above has clearly not been satisfied in this case.
The object sought to be achieved by the impugned Act was to reduce the debts secured on jagir lands which had been resumed under the provisions of the 'Rajasthan Land Reforms and Resumption of 911 Jagirs Act.
The Jagirdar 's capacity to pay debts had been reduced by the resumption of his lands and the object of the Act was to ameliorate his condition.
The fact that the debts are owed to a government or local authority or other bodies mentioned in the impugned part of section 2(e) has no rational relationship with the object sought to be achieved by the Act.
Further, no intelligible principle underlies the exempted categories of debts.
The reason why a debt advanced on behalf of a person by the Court of Wards is clubbed with a debt due to a State or a scheduled bank and why a debt due to a non scheduled bank is not excluded from the purview of the Act is not discernible.
In this connection, Mr. Kapur has relied on the decision of this Court in Manna Lal vs Collector of Jhalwar (1).
This case is clearly distinguishable because there a law giving special facility for the recovery of dues to a bank owned by the Government was held not to offend article 14 of the Con stitution.
It is clear that the government can be legitimately put in a separate category for the purpose of laying down the procedure for the recovery of its dues.
Mr. Kapur further relied on Nand Ram Chhotey Lal vs Kishore Raman Singh (2).
The judgment of the High Court undoubtedly supports him, but, with respect, we are unable to agree with the ratio of the case.
The High Court was concerned with.
the U.P. Zamindars Debt Reduction Act (U.P. Act XV of 1953), which is substantially similar to the impugned Act The ratio of the High Court is: "It appears to us that the legislature had to make a distinction between debts due from the ex zamindars to private individuals and the debts due to scheduled banks or to Government or semi Government authorities.
The obvious reason appears to be that the private money lenders were considered to be a bane to rural economy and perpetrating agricultural indebtedness.
It was to save the cultivators from such unscrupulous moneylenders that such laws had to be enacted, the last in series being the Zamindars Debt Reduction Act.
" We consider there is no force in these observations.
No such reason is apparent from the terms of the Act.
Non scheduled banks (1) ; (2) AIR (1962) All.
912 and all other private creditors cannot be said to be a bane to rural economy.
The third case relied on by Mr. Kapur Jamnalal Ramlal Kimtee vs Kishendas and State of Hyderabad(1) does not contain any discussion.
The High Court supported the exclusion on the ground that "exclusion of certain class of debts under section 3 of the impugned Act also is not without substantial justification for public demands do not stand in the same position as ordinary demands." Apart from the fact that all the exempted categories are not public demands, the High Court does not seem to have considered whether the differentia had any rational relationship sought to be achieved by the Act.
In conclusion, agreeing with the High Court, we hold that no reasonable classification is disclosed for the purpose of sustaining the impugned part of section 2(e).
Now, coming to the question of the validity of section 7(2), we consider that this sub section is valid as it imposes reasonable restrictions, in the interest of general public, on the rights of a secured creditor.
A secured creditor, when he advanced money on the security of jagir property, primarily looked to that property for the realisation of his dues.
Further, this sub section has been designed with the object of rehabilitating a jagirdar whose jagir properties have been taken over by the State for a public purpose at a low valuation.
If this provision was not made, the jagirdar would find it difficult to start life afresh and look to other avocations, for not only his existing non jagir property but his future income and acquired properties would be liable to attachment and sale for the purpose of satisfying the demands of such secured creditors.
Accordingly, we hold that section 7(2) imposes reasonable restrictions in the interest of general public.
The appeal is accordingly partly accepted, the decision of the High Court in regard to section 2(e) is confirmed and that in regard to section 7(2) is reversed.
As the respondent was not represented and that appeal has only partly succeeded, we order the parties to bear their own costs in this Court.
Appeal partly allowed.
(1)AIR (1955) Hyd. 194.
[/INST]The appellants as workmen of respondent No. 1 in all the three respondent concerns were getting free medical benefits of a very high order in a well furnished hospital maintained by respondent No. 1.
Respondent No. 3.
the Union of India issued a notification under section 1(3) of the Employees State Insurance Act appointing 28th August, 1960 as the date on which some provisions of the Act should come into force in certain areas of the State of Bihar and the area in which the appellants were working came within the scope of the Act.
In pursuance of the said notification, the Chief Executive Officer of Respondent No. 1 issued notices to the appellants that the medical benefits upto the extent admissible under the Act will cease to be provided to insurable persons from the appointed day and the medical benefits would thereafter be governed by the relevant provisions of the Act.
The appellants in a writ petition to the High Court challenged the validity of section 1(3) of the Act and legality of the notifications issued under it, inter alia, on the ground that it contravened article 14 of the Constitution and suffers from the vice of excessive delegation.
The High Court rejected the plea and dismissed the writ petitions.
On appeal by special leave the appellants contended that section 1(3) of the Act suffers from excessive delegation and is, therefore, invalid.
Held: (i) section 1(3) of the Act is not an illustration of delegated legislation at all, it can be described as conditional legislation.
It purports to authorise the Central Government to establish a corporation for the administration of the scheme of Employees ' State Insurance by a notification.
As to when the notification should be issued and in respect of what factories it should be issued, has been left to the discretion of the Central Government and that is precisely what is usually done by conditional legislation.
Queen vs Burah, 5.
I.A. 178, relied on.
(ii) Assuming there is an element of delegation, the plea is equally unsustainable, because there is enough guidance given by the relevant provisions of the Act and the very scheme of the Act itself.
In the very nature of things, it would have been impossible for the legislature to decide in what areas and in respect of which factories the Employees ' State Insurance Corporation should be established.
It is obvious that a scheme of this kind, though very beneficent, could not be introduced 34 159 S.C. 58 914 in the whole of the country all at once.
Such beneficial measures which need careful experimentation have sometimes to be adopted by stages and in different phases, and so, inevitably, the question of extending the statutory benefits contemplated by the Act has to be left to the discretion of the appropriate Government.
That cannot amount to excessive delegation.
Edward Mills Co. Ltd. Beawar vs The State of Ajmer, ; , M/s Bhikusa Yamasa Kshatriya vs Sangamner Akola Taluka Bidi Kamgar Union, [1963] Supp.
1 S.C.R. 524 and Bhikusa Yamasa Kahtriva vs Union of India, ; followed:
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<s>[INST] Summarize the judgementCivil Appeal No. 187 of 1983.
From the Judgment and Order dated the 17th August, 1982 of the Punjab and Haryana High Court in First Appeal From Order No. 199 M of 1979.
306 R. K. Garg, Mrs. Meera Aggarwal and R. C. Misra for the appellant.
E.C. Agarwala, Mrs. H. Wahi and Rajiv Sharma for the respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
The parties herein were married at Jullundur City according to Hindu Vedic rites on or about 24th January, 1975.
The first daughter of the marriage Menka was born on 4th January, 1976.
On 28th February, 1977 second daughter Guddi was born.
It is alleged that 16th May, 1977 was the last day of cohabitation by the parties.
It is further alleged that on 16th May, 1977, the respondent husband turned the appellant out of his house and withdrew himself from her society.
The second daughter unfortunately expired in the house of the respondent/father on 6th August, 1977.
On 17th October, 1977, the wife appellant filed a suit against the husband/respondent herein under Section 9 of the hereinafter referred to as the said Act for restitution of conjugal rights.
In view of the argument now sought to be advanced, it is necessary to refer to the said petition.
In the said petition, the wife had set out the history of the marriage as hereinbefore briefly mentioned and alleged several maltreatments both by the husband as well as by her in laws and thereafter claimed decree for restitution of conjugal rights.
On 21st March, 1978, the learned Sub Judge Ist Class passed an order granting Rs. 185 per month as maintenance pendente lite and Rs. 300 as the litigation expenses.
On 28th March, 1978, a consent decree was passed by the learned Sub Judge Ist Class for restitution of conjugal rights.
It may be mentioned that on the petition of the wife for restitution of conjugal rights, the husband respondent appeared and filed his written statement admitting therein the factum of marriage between the parties but denied the fact that the respondent had ever made any demand from the petitioner as alleged or had ever disliked her or had withdrawn from her society or turned her out from his house as alleged by the wife petitioner in her petition for restitution of conjugal rights.
The respondent thereafter made a statement in the court that the application of the petitioner under Section 9 of the said Act be granted and decree thereof be passed.
Accordingly the learned Sub Judge Ist Class on 28th March 1978 passed the decree for the restitution 307 of conjugal rights between the parties.
It was alleged by the petitioner wife that the appellant had gone to the house of the respondent and lived with him for two days as husband and wife.
This fact has been disbelieved by all the courts.
The courts have come to the conclusion and that conclusion is not challenged before us that there has been no cohabitation after the passing of the decree for restitution of conjugal rights.
On 19th April, 1979, the respondent/husband filed a petition under Section 13 of the said Act against the appellant for divorce on the ground that one year had passed from the date of the decree for restitution of confugal rights, but no actual cohabitation had taken place between the parties.
The appellant filed her reply to the said petition.
The categorical case in reply of the appellant was that it was incorrect that after passing of the decree, there had been no restitution of conjugal rights between the parties, positive case of the appellant was that after passing of the decree, the wife was taken to the house of the husband by the parents of the wife after one month of the decree and that the husband kept the wife in his house for two days and she was again turned out.
It was further alleged that the wife had filed an application under Section 28A of the said Act in the court of Sub Judge, 1st Class, Jullundur on 22nd January, 1979 with the request that the husband should be directed to comply with the decree passed against him under Section 9 of the said Act and the application was pending at the time when the reply was filed by the wife to the petition for divorce.
The learned District Judge on 15th October, 1979 dismissed the petition of the husband for divorce.
The learned Judge framed two issues, one was whether there has been no restitution of conjugal rights after the passing of the decree for the restitution of conjugal rights, and secondly to what relief was the husband entitled to ? After considering the evidence of civil and criminal proceedings pending between the parties, the learned Judge came to the conclusion that there has been no resumption of cohabitation between the parties after 28th March, 1978 and decided the issue in favour of the husband but on the question of relief the learned Judge was of the view that in view of the provisions of Section 23 of the said Act and in view of the fact that the previous decree was a consent decree and at that time there was no provision like provision of Section 13B of the said Act i.e. 'divorce by mutual consent ', the learned Judge was of the view that as the decree for restitution 308 of conjugal rights was passed by the consent of the parties, the husband was not entitled to a decree for divorce.
Being aggrieved by the said decision, there was an appeal before the High Court of Punjab and Haryana.
So far as last mentioned ground was concerned, the High Court held that in view of the decision of this Court in the case of Dharmendra Kumar vs Usha Kumari, this contention was not open to the wife.
The court was of the opinion that in view of the said decision of this Court, it could not be said that the husband was taking advantage of his 'wrongs '.
In the said decision this Court noted that it would not be reasonable to hold that the relief which was available to the spouse against whom a decree for restitution of conjugal rights had been passed should be denied to the one who does not comply with the decree passed against him or her.
The expression "in order to be a 'wrong ' within the meaning of Section 23 (1) (a) the conduct alleged has to be something more than mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled to.
So, therefore, Section 23 (1) (a) provides as follows: "23.
(1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that (a) any of the grounds for granting relief exists and the petitioner except in cases where the relief is sought by him on the ground specified in sub clause (a), sub clause (b) or sub clause (c) of clause (ii) of section 5 is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief and").
In that view of the matter, the High Court rejected the contention.
So far as the other aspect was concerned, the learned Judge expressed the view that the decree for restitution of conjugal rights could not be passed with the consent of the parties and therefore being a collusive one disentitled the husband to a decree for divorce.
This view was taken by the learned trial judge relying on a previous decision of the High Court.
Mr. Justice Goyal of the High Court felt that this view required reconsideration and he therefore referred the matter to the Chief Justice for constitution of a Division Bench of the High Court for the consideration of this question.
309 The matter thereafter came up before a Division Bench of Punjab and Haryana High Court and Chief Justice Sandhawalia for the said court on consideration of different authorities came to the conclusion that a consent decree could not be termed to be a collusive decree so as to disentitle the petitioner to decree for restitution of conjugal rights.
It may be mentioned that before the Division Bench of behalf of the appellant wife, counsel did not assail the factual finding of the Trial Court that there was no co habitation after the decree for restitution of conjugal rights nor did he press the first ground of defence namely that the appellant could not take advantage of his 'wrong ' because of having refused cohabitation in execution of the decree.
However, the ground that the decree for restitution of conjugal rights was in a sense collusive decree was pressed before the Division Bench.
In view of the Full Bench decision of the Punjab and Haryana High Court in the case of Joginder Singh vs Smt.
Pushpa wherein the majority of the Judges of the Full Bench held that a consent decree in all cases could not be said to be a collusive decree and where the parties had agreed to passing of a decree after attempts had been made to settle the matter, in view of the language of Section 23 of the court had tried to make conciliation between the parties and conciliation had been ordered, the husband was not disentitled to get a decree.
Section 23 sub section (2) provides as follows: "(2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavor to bring about a reconciliation between the parties: Provided that nothing contained in this sub section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) of sub section (1) of section 13.
" In this case from the facts on record it appears that there was no collusion between the parties.
The wife petitioned against the husband on certain allegations, the husband denied these allegations.
He stated that he was willing to take the wife back.
A decree on that basis was passed.
It is difficult to find any collusion as such in 310 the instant case.
Apart from that we are in agreement with the majority of the learned judges of the Division Bench of Punjab and Haryana High Court in the case of Joginder Singh vs Smt.
Pushpa (supra) that all cases of consent decrees cannot be said to be collusive.
Consent decrees per se in matrimonial matters are not collusive.
As would be evident from legislative intent of Section 13B that divorce by mutual consent is no longer foreign to Indian law of divorce but of course this is a subsequent amendment and was not applicable at the time when the decree in question was passed.
In the premises we accept the majority view of the Division Bench of Punjab and Haryana High Court on this point.
In this appeal before this Court, counsel for the wife did not challenge the finding of the Division Bench that the consent decree as such was not bad or collusive.
What he tried to urge before us was that in view of the expression 'wrong ' in Section 23(1) (a) of the Act, the husband was disentitled in this case to get a decree for divorce.
It was sought to be urged that from the very beginning the husband wanted that decree for divorce should be passed.
He therefore did not deliberately oppose the decree for restitution of conjugal rights.
It was submitted on the other hand that the respondent/husband had with the intention of ultimately having divorce allowed the wife a decree for the restitution of conjugal rights knowing fully well that this decree he would not honour and thereby he misled the wife and the Court and thereafter refused to cohabitate with the wife and now, it was submitted, cannot be allowed to take advantage of his 'wrong '.
There is, however, no whisper of these allegations in the pleading.
As usual, on this being pointed out, the counsel prayed that he should be given an opportunity of amending his pleadings and, the parties, with usual plea, should not suffer for the mistake of the lawyers.
In this case, however, there are insurmountable difficulties.
Firstly there was no pleading, secondly this ground was not urged before any of the courts below which is a question of fact, thirdly the facts pleaded and the allegations made by the wife in the trial court and before the Division Bench were contrary to the facts now sought to be urged in support to her appeal.
The definite case of the wife was that after the decree for restitution of conjugal rights, the husband and wife cohabitated for two days.
The ground now sought to be urged is that the husband wanted the wife to have a decree for judicial separation by some kind of a trap and then not to cohabitate with her and thereafter obtain this decree for divorce.
This would be opposed to the facts alleged in the defence by the wife.
Therefore 311 quite apart from the fact that there was no pleading which is a serious and fatal mistake, there is no scope of giving any opportunity of amending the pleadings at this stage permitting the wife to make an inconsistent case.
Counsel for the appellant sought to urge that the expression 'taking advantage of his or her own wrongs ' in clause (a) of sub section 23 must be construed in such a manner as would not make the Indian wives suffer at the hands of cunning and dishonest husbands.
Firstly even if there is any scope for accepting this broad argument, it has no factual application to this case and secondly if that is so then it requires a legislation to that effect.
We are therefore unable to accept the contention of counsel for the appellant that the conduct of the husband sought to be urged against him could possibly come within the expression 'his own wrongs ' in section 23(1) (a) of the Act so as to disentitle him to a decree for divorce to which he is otherwise entitled to as held by the courts below.
Further more we reach this conclusion without any mental compunction because it is evident that for whatever be the reasons this marriage has broken down and the parties can no longer live together as husband and wife, if such is the situation it is better to close the chapter.
Our attention, however, was drawn to a decision of a learned single judge of the Andhra Pradesh High Court in the case of T. Sareetha vs Venkata Subbaiah.
In the said decision the learned judge had observed that the remedy of restitution of conjugal rights provided for by Section 9 of the said Act was a savage and barbarous remedy violating the right to privacy and human dignity guaranteed by Article 21 of the Constitution.
Hence, according to the learned judge, Section 9 was constitutionally void.
Any statutory provision that abridged the rights guaranteed by Part III of the Constitution would have to be declared void in terms of Article 13 of the Constitution.
According to the said learned judge, Article 21 guaranteed right to life and personal liberty against the State action.
Formulated in simple negative terms, its range of operation positively forbidding the State from depriving any person of his life or personal liberty except according to the procedure established by law was of far reaching dimensions and of overwhelming constitutional significance.
Learned judge observed that a decree for restitution of conjugal rights constituted the grossest form of violation of any individual right to privacy.
According to the learned judge, it denied the woman her free choice whether, when and how her body was to 312 become the vehicle for the procreation of another human being.
A decree for restitution of conjugal rights deprived, according to the learned judge, a woman of control over her choice as and when and by whom the various parts of her body should be allowed to be sensed.
The woman loses her control over her most intimate decisions.
The learned judge therefore was of the view that the right to privacy guaranteed by Article 21 was flagrantly violated by a decree for restitution of conjugal rights.
The learned judge was of the view that a wife who was keeping away from her husband because of permanent or even temporary estrangement cannot be forced, without violating her right to privacy to bear a child by her husband.
During a time when she was probably contemplating an action for divorce, the use and enforcement of Section 9 of the said Act against the estranged wife could irretrievably alter her position by bringing about forcible conception permanently ruining her mind, body and life and everything connected with it.
The learned judge was therefore clearly of the view that Section 9 of the said Act violated Article 21 of the Constitution.
He referred to the Scarman Commission 's report in England recommending its abolition.
The learned judge was also of the view that Section 9 of the said Act, promoted no legitimate public purpose based on any conception of the general good.
It did not therefore subserve any social good.
Section 9 of the said Act was, therefore, held to be arbitrary and void as offending Article 14 of the Constitution.
Learned judge further observed that though Section 9 of the said Act did not in form offend the classification test, inasmuch as it made no discrimination between a husband and wife, on the other hand, by making the remedy of restitution of conjugal rights equally available both to wife and husband, it apparently satisfied the equality test.
But bare equality of treatment regardless of the inequality of realities was neither justice nor homage to the constitutional principles.
He relied on the decision of this Court in the case of Murthy Match Works, Etc.
vs The Assistant Collector of Central Excise Etc.
The learned judge, however, was of the opinion based on how this remedy was found used almost exclusively by the husband and was rarely resorted to by the wife.
The learned judge noticed and that is a very significant point that decree for restitution of conjugal rights can only be enforced under Order 21 Rule 32 of Code of Civil Procedure.
He also referred to certain trend in the American law and came to the 313 conclusion that Section 9 of the said Act was null and void.
The above view of the learned single judge of Andhra Pradesh was dissented from in a decision of the learned single judge of the Delhi High Court in the case of Smt.
Harvinder Kaur vs Harmander Singh Choudhry.
In the said decision, the learned judge of the Delhi High Court expressed the view that Section 9 of the said Act was not violative of Articles 14 and 21 of the Constitution.
The learned judge noted that the object of restitution decree was to bring about cohabitation between the estranged parties so that they could live together in the matrimonial home in amity.
The leading idea of Section 9 was to preserve the marriage.
From the definition of cohabitation and consortium, it appeared to the learned judge that sexual intercourse was one of the elements that went to make up the marriage, but that was not the summum bonum.
The courts do not and can not enforce sexual intercourse.
Sexual relations constituted an important element in the conception of marriage, but it was also true that these did not constitute its whole content nor could the remaining aspects of matrimonial consortium be said to be wholly unsubstantial or of trivial character.
The remedy of restitution aimed at cohabitation and consortium and not merely at sexual intercourse.
The learned judge expressed the view that the restitution decree did not enforce sexual intercourse.
It was a fallacy to hold that the restitution of conjugal rights constituted "the starkest form of governmental invasion" of "marital privacy".
This point namely validity of Section 9 of the said Act was not canvassed in the instant case in the courts below counsel for the appellant, however, sought to urge this point before us as a legal proposition.
We have allowed him to do so.
Having considered the views of the learned single judge of the Andhra Pradesh High Court and that of learned single judge of Delhi High Court, we prefer to accept on this aspect namely on the validity of Section 9 of the said Act the views of the learned single judge of the Delhi High Court.
It may be mentioned that conjugal rights may be viewed in its proper perspective by keeping in mind the dictionary meaning of the expression "Conjugal".
Shorter Oxford English Dictionary, 3rd Edn.
I page 371 notes the meaning of 'conjugal ' as "of or pertaining to marriage or to husband and wife in their relations to each other".
In the Dictionary of English Law, 1959 Edn.
at page 453, Earl Jowitt defines 'conjugal rights ' thus: 314 "The right which husband and wife have to each other 's society and marital intercourse.
The suit for restitution of conjugal rights is a matrimonial suit, cognizable in the Divorce Court, which is brought whenever either the husband or the wife lives separate from the other without any sufficient reason, in which case the court will decree restitution of conjugal rights (Matrimonial Causes Act, 1950, section 15), but will not enforce it by attachment, substituting however for attachment, if the wife be the petitioner, an order for periodical payments by the husband to the wife (s.22).
Conjugal rights cannot be enforced by the act of either party, and a husband cannot seize and detain his wife by force (R.V. Jackson In India it may be borne in mind that conjugal rights i.e. right of the husband or the wife to the society of the other spouse is not merely creature of the statute.
Such a right is inherent in the very institution of marriage itself.
See in this connection Mulla 's Hindu Law 15th Edn.
p. 567 Para 443.
There are sufficient safeguards in Section 9 to prevent it from being a tyranny.
The importance of the concept of conjugal rights can be viewed in the light of Law Commission 71st Report on the "Irretrievable Breakdown of Marriage as a Ground of Divorce, Para 6.5 where it is stated thus: "Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common, things of the matter and of the spirit and from showering love and affection on one 's offspring.
Living together is a symbol of such sharing in all its aspects.
Living apart is a symbol indicating the negation of such sharing.
It is indicative of a disruption of the essence of marriage "breakdown" and if it continues for a fairly long period, it would indicate destruction of the essence of marriage "irretrievable breakdown".
Section 9 only is a codification of pre existing law.
Rule 32 of Order 21 of the Code of Civil Procedure deals with decree for specific performance for restitution of conjugal rights or for an 315 injuction.
Sub rule (1) of Rule 32 is in these terms: "Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract, or for an injuction by his detention in the civil prison, or by the attachment of his property, or by both.
" It is significant to note that unlike a decree of specific performance of contract, for restitution of conjugal rights the sanction is provided by court where the disobedience to such a decree is willful i.e. is deliberate, in spite of the opportunities and there are no other impediments, might be enforced by attachment of property.
So the only sanction is by attachment of property against disobedience of a decree for restitution of conjugal rights where the disobedience follows as a result of a willful conduct i.e. where conditions are there for a wife or a husband to obey the decree for restitution of conjugal rights but disobeys the same in spite of such conditions, then only financial sanction, provided he or she has properties to be attached, is provided for.
This is so as an inducement by the court in appropriate case when the court has decreed restitution for conjugal rights and that the court can only decree if there is no just reason for not passing decree for restitution of conjugal rights to offer inducement for the husband or wife to live together in order to give them an opportunity to settle up the matter amicably.
It serves a social purpose as an aid to the prevention of break up of marriage.
It cannot be viewed in the manner the learned single judge of Andhra Pradesh High Court has viewed it and we are therefore unable to accept the position that Section 9 of the said Act is violative of Article 14 or Article 21 of the Constitution if the purpose of the decree for restitution of conjugal rights in the said Act is understood in its proper perspective and if the method of its execution in cases of disobedience is kept in view.
Another decision to which our attention was drawn is also a Bench decision of the Andhra Pradesh High Court in the case of Geeta Laxmi vs G.V.R.K.
Sarveswara Rao.
There on the admitted 316 misconduct of the husband is not only in not complying with the decree for restitution of conjugal rights but ill treating the wife and finally driving her away from the house, it was held that the husband was not entitled to a decree under Section 13(1A) of the said Act in view of the wrong as contemplated under Section 23(1) (a) of the Act.
The facts of that case were entirely different from the facts of the instant case before us.
There is no such allegation or proof of any ill treatment by the husband or any evidence of the husband driving the wife out of the house.
In that view of the matter, this decision cannot be of any assistance to the appellant in the instant case.
Counsel for the appellant, however, contended before us that in the social reality of the Indian society, a divorced wife would be materially at a great disadvantage.
He is right in this submission.
In view, however, of the position in law, we would direct that even after the final decree of divorce, the husband would continue to pay maintenance to the wife until she remarries and would maintain the one living daughter of the marriage.
Separate maintenance should be paid for the wife and the living daughter.
Until altered by appropriate order on application on proper materials such maintenance should be Rs. 200 per month for the wife appellant and Rs. 300 per month for the daughter Menka.
Wife would be entitled to such maintenance only until she re marries and the daughter Menka to her maintenance until she is married.
Parties will be at liberty to ask for variation of the amounts by proper application on proper materials made before Sub judge Ist Class Jullunder.
The respondent would pay costs of this appeal to appellant assessed at Rs. 1500.
The appeal is dismissed with the aforesaid directions.
N.V.K. Appeal dismissed.
[/INST]The wife appellant filed a suit against the husband respondent under Section 9 of the , for restitution of conjugal rights.
Though the respondent contested the petition contending that he had neither turned the appellant out from his house nor withdrawn from her society later as he made a statement in the Court that the application under Section 9 be granted; a consent decree was passed by the Sub Judge for the restitution of conjugal rights between the parties.
After a lapse of a year, the respondent husband filed a petition under Section 13 of the Act against the appellant for divorce on the ground that though one year had lapsed from the date of passing the decree for restitution of conjugal rights no actual co habitation had taken place between the parties.
The appellant filed her reply contending that she was taken to the house of the husband by her parents one month after the decree and that the husband kept her in the house for two days and then she was again turned out.
It was further alleged that an application under Section 28A filed in the Subordinate Court was pending.
304 The District Judge after considering the evidence of the civil and criminal proceedings pending between the parties, came to the conclusion that there had been no resumption of cohabitation between the parties and that in view of the provisions of Section 23 and in view of the fact that the previous decree was a consent decree and that at the time of the passing of the said decree, as there was no provision like Section 13B i.e. divorce by mutual consent '; held that as the decree for restitution of conjugal rights was passed by the consent of the parties, the husband was not entitled to a decree for divorce.
The respondent filed an appeal.
A Single Judge of the High Court following the decision of this Court in Dharmendra Kumar vs Usha Kumari ; , held that it could not be said that the husband was taking advantage of his 'wrongs ', but however expressed the view that the decree for restitution of conjugal rights could not be passed with the consent of the parties, and therefore being a collusive one disentitled the husband to a decree for divorce, and referred the matter to the Chief Justice for constitution of a Division Bench for consideration of the question.
The Division Bench held following Joginder Singh vs Smt.
Pushpa, AIR 1969 Punjab and Haryana page 397 that a consent decree could not be termed to be a collusive, decree so as to disentitle the petitioner to a decree for restitution of conjugal rights, and that in view of the language of Section 23 if the Court had tried to make conciliation between the parties and conciliation had been ordered, the husband was not disentitled to get a decree.
The appeal was allowed, and the husband granted a decree of divorce.
In the appeal to this Court it was contended on behalf of the wife appellant that : (a) in view of the expression 'wrong ' in section 23(1) (a) of the Act, the husband was disentitled to get a decree for divorce, and (b) Section 9 of the Act was arbitrary and void as offending Article 14 of the Constitution.
Dismissing the Appeal, ^ HELD: (1) In India conjugal rights i.e. right of the husband or the wife to the society of the other spouse is not merely creature of the statute.
Such a right is inherent in the very institution of marriage itself.
There are sufficient safeguards in Section 9 of the to prevent it from being a tyranny.
[314 D E] 305 2.
Section 9 is only a codification of pre existing law.
Rule 32 of Order 21 of the Code of Civil Procedure deals with decree for specific performance for restitution of conjugal rights or for an injunction.
[314 H] 3.
Section 9 of the Act is not violative of Article 14 or Article 21 of the Constitution if the purpose of the decree for restitution of conjugal rights in the said Act is understood in its proper perspective and if the method of execution in cases of disobedience is kept in view.
[315 G] T. Sareetha vs Venkata Subbaiah, A.I.R. 1983 Andhra Pradesh page 356, over ruled.
Harvinder kaur vs Harmander Singh Choudhry, A.I.R. 1984 Delhi, page 66, approved.
It is significant that unlike a decree of specific performance of contract; a decree for restitution of conjugal rights, where the disobedience to such a decree is willful i.e. is deliberate, might be enforced by attachment of property.
Where the disobedience follows as a result of a willful conduct i.e. where conditions are there for a wife or a husband to obey the decree for restitution of conjugal rights but disobeys the same in spite of such conditions, then only the properties have to be attached, is provided for.
This is so to enable the Court in appropriate cases when the Court has decreed restitution for conjugal rights to offer inducement for the husband or wife to live together and to settle up the matter amicably.
It serves a social purpose, as an aid to the prevention of break up of marriage.[315 C F] 5.
(i) Even after the final decree of divorce the husband would continue to pay maintenance to the wife until she remarries and would maintain the one living daughter of the marriage.
Separate maintenance should be paid for the wife and the living daughter.
Wife would be entitled to such maintenance only until she remarries and the daughter to her maintenance until she is married.
[316 C; E] (ii) Until altered by appropriate order on application or proper materials, such maintenance should be Rs. 200 per month for the wife, and Rs. 300 per month for the daughter.
[316 D]
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<s>[INST] Summarize the judgementCivil Appeal No. 173 of 1983.
PG NO 336 From the Judgment and Order dated 30.9.1982 of the Calcutta High Court in Suit No. 568 of 1979.
Ajay Nath Ray, Surendra Dube and Mrs. Indira Sawhney for the Appellant.
S.K. Kapur, Ranjan Deb, Gangadeb and B.P. Singh for the Respondent.
The Judgment of the Court was delivered by RANGANATHAN, J.
A somewhat important question as to the nature and scope of the rights available to a defendant whose "defence has been struck out" calls for determination in this appeal in the particular context of the West Bengal Premises Tenancy Act, 1956.
The appeal arises from the judgment of a Full Bench of the Calcutta High Court constituted to resolve a conflict in the earlier decisions of the same court on this issue.
The Full Bench, by a majority of two (P.K. Banerjee and Chittatosh Mookerjee, JJ) to one (Ramendra Mohan Datta, Acting C.J.) decided that in a matter where the defence against delivery of possession has been struck out under sub section 3 of section 17 of the West Bengal Premises Tenancy Act, 1956, (hereinafter referred to as the 'Act ') the defendant tenant cannot cross examine the witnesses called by the plaintiff, excepting on the point of notice under section 13(6) of the said Act.
The correctness of the view taken by the majority is contested in this appeal.
Though the learned Judges were of opinion that the issue decided on the reference raised substantial questions of law of general importance, they considered themselves unable to grant a certificate of fitness for appeal to this Court since the reference had arisen only on an interim order and the view expressed did not result in a judgment, order or decree against which leave to appeal could be granted.
Thereupon the aggrieved party filed a petition for special leave to appeal before this Court, which was granted.
It is in this manner that the issue has been brought up before this Court.
A detailed factual background is not necessary since the question raised is purely one of law.
It may, however, be mentioned that the respondent in this appeal filed a suit in 1979 on the original side of the Calcutta High Court praying for a decree directing the defendant (present appellant) to deliver up vacant and peaceful possession of certain premises in Calcutta and also for a decree for mesne profits or damages from February 1, 1978 till the date of PG NO 337 delivery of possession.
The appellant, a company carrying on business at the premises in question, filed its written statement denying the averments in the plaint and the claims made therein.
During the pendency of the suit several interlocutory applications were made from time to time in which orders were passed directing the present appellant (hereinafter referred to as the tenant) to deposit certain sums in court.
At one stage it appears that the tenant made an application praying that he may be permitted to deposit the arrears of rent in monthly instalments along with the current rents.
No orders were passed on this application on the ground that the application was out of time.
However, it appears that subsequent to disposal of this application, the defence of the tenant had been struck off under the provisions of section 17(3) of the Act.
The correctness of this order striking out the defence of the tenant has become final and is no longer in issue.
It, however, appears that the tenant contended before the trial court (though the details are not available on record) that the order under section 17(3) could, at worst, preclude the tenant only from adducing evidence, oral or documentary, in support of the averments made in its written statement.
It was claimed that it was open to the tenant to exercise his rights (a) of cross examining the plaintiff 's witnesses; (b) of pointing out to the court the factual and legal infirmities in the plaintiff 's case; and (c) of addressing arguments on the basis of evidence as adduced by the plaintiff and tested by the cross examination on behalf of the defendant.
Learned counsel for the appellant also urged before us that though the defendant had conceded before the High Court that it will not be entitled to lead any evidence, the reference being of a general question regarding the consequences of a strike off, we should consider the question in all its aspects and lay down the principles governing such cases.
We may start by referring to the provisions of section 17 of the Act.
When a suit for eviction is filed under the Act agianst any tenant on any of the grounds specified in Section 13 of the Act, Section 17(1) imposes an obligation on the tenant to deposit into the Court or with the controller or pay to the landlord all arrears of rent due from him with interest within a specified period and also to PG NO 338 continue to deposit or pay the current rent thereafter regularly month after month.
Sub section (2) provides a machinery for the determination of the amounts to be so paid or deposited, in case of dispute.
Sub section (2A) and (2B) contain provisions enabling the Court, subject to certain restrictions, to extend the time for such deposit or payment or allow the deposit or payment to be made in instalments.
If the tenant deposits or pays the amounts as above, he is protected from being evicted from the premises on the ground of non payment of rent: sub section (4).
If, on the other hand, he fails to deposit any amount referred to above within the time permitted, the consequence set out in sub section (3) will follow.
That sub section reads: "(3) If a tenant fails to deposit, or pay any amount referred to in sub section (1) or sub section (2) within the time specified therein or within such extended time as may be allowed under clause (a) of sub section (2A), or fails to deposit or pay any instalment permitted under clause (b) of sub section (2A) within the time fixed therefor, the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit." (underlining ours) Before discussing the interpretation of the crucial words of the sub section, it may be useful to set out certain analogous provisions which have been the subject of judicial consideration: (a) The West Bengal Act XVII of 1950, which preceded the one under consideration, was somewhat different in its language.
section 14(1) of that Act dealt with a case where the suit was based on the ground of non payment of rent.
The Court could make an order calling upon the tenant to pay up the arrears of rent on or before a specified date.
The sequitir was set out in sub sections (3) and (4) as follows: "(3) If within the time fixed in the order under sub section (1), the tenant deposits in the court the sum specified in the said order, the suit, so far as it is a suit for recovery of possession of the premises, shall be dismissed by the court.
In default of such payment the court shall proceed with the hearing of the suit: Provided that the tenant shall not be entitled to the benefit of protection against eviction under this section if PG NO 339 he makes default in payment of the rent referred to in clause (i) of the proviso to sub section 1 of section 12 on three occasions within a period of eighteen months." "(4) If the tenant contests the suit, as regards claim for ejectment, the plaintiff landlord may make an application at any stage of the suit for order on the tenant defendant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent, if any, and the court after giving an opportunity to the parties to be heard may make an order for deposit of rent at such rate month by month and the arrears of rent, if any, and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or the rent at such rate for any month by the fifteenth day of the next following month, the court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim to ejectment.
The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the court may permit him to do so." (b) Our attention has been drawn to two provisions of the Rules framed by the Calcutta High Court governing proceedings on its Original Side.
These rules read as follows: Chapter IX Rule 4: Suit heard ex parte against defendants in default Where one or more of several defendants has or have filed a written statement or written statements, but another or others has or have not, the suit shall, unless otherwise ordered, upon production of a certificate showing such default, be heard ex parte as against the defaulting defendant or defendants.
Chapter XIV Rule 3: Where heard ex parte defendant may, in person, cross examine and address the Court Where a suit is heard ex parte against any defendant, such defendant may be allowed to cross examine, in person, the plaintiff 's witnesses, and to address the Court; but unless the Court otherwise specially orders, evidence will not be received on his behalf, nor will he be allowed the assistance of an Advocate or Attorney.
PG NO 340 (c) Another provision that may be referred to in this context is the one in Order 11 rule 21 of the Code of Civil Procedure (C.P.C.) This rule reads thus: 21(1) Non compliance with order for discovery Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect, and an order may be made on such application accordingly, after notice to the parties after giving them a reasonable opportunity of being heard.
(2) Where an order is made under sub rule (1) dismissing any suit, the plaintiff, shall be precluded from bringing a fresh suit on the same cause of action.
On behalf of the appellant learned counsel submits that a tenant or defendant whose "defence is struck out" is in the same position as if he had filed no written statement in the suit.
It is pointed out that the Original Side Rules of the Calcutta High Court permit a defendant who is said to be ex parte, either by not filing a written statement or by non appearance, to cross examine the plaintiff 's witnesses and to address the court; not only that, the rules confer a discretion in the court to permit him to have the assistance of an advocate and even to adduce evidence on his behalf.
This is based on the principle that the effect of an order striking out the defence can only be that the defendant should not, because of his default, be permitted to plead the positive case, which he had or could have put forward in his written statement or substantiate it by leading evidence on his side.
This cannot preclude him from putting forward the plea that the plaintiff is not entitled to a decree as he has not proved his case.
This, it is said, he is entitled to do either by cross examining the plaintiff 's witnesses and thus demolishing the plaintiff 's case or addressing arguments either on points of law or even on the facts in the light of the plaintiff 's evidence as tested by his cross examination.
Even this cannot, it is urged, be an invariable rule and the Court should always have a discretion, as provided for in the Calcutta High Court Rules, to relax its rigidity depending upon the circumstances of each case.
The position in an eviction Petition, it is said, cannot be much different.
Learned counsel urges that is a well established principle, PG NO 341 particularly under the Rent Acts, that it is for the plaintiff to satisfy the court that the conditions set out in the statute to enable him to obtain an order of eviction are strictly fulfilled.
Even where a defendant is said to be ex parte, the plaintiff is not absolved from this responsibility and it is also necessary for the Court, in such cases, to satisfy itself that the plaintiff is entitled, on the terms of the statute, to the relief prayed for: vide K.K. Chari vs R.M. Seshadri, AIR ; and Inder Mohan Lal vs Ramesh Khanna, ; In doing this the Court can and should take the help and assistance of the defendant and counsel.
It should be open to the defendant/tenant, even if he cannot put up a positive case, to show to the Court that the plaintiff 's suit or petition should fail on its own inherent weaknesses.
Learned counsel has relied on certain decisions and the observations therein in support of his submissions.
These may be referred to: An early decision of this Court, Sangram Singh vs Election Tribunal, Kotah, Bhurey Lal Baya, ; , was concerned with the question whether a defendant who had been set ex parte at some of the hearings (after the first hearing) could be permitted to appear and take part in later hearings, without the ex parte order being set aside.
The Court, after referring the terms of the Order XVII Rule 2 of the Code of Civil Procedure, observed thus: "The learned Judges who constituted a Full Bench of the Lucknow Chief Court (Tulsha Devi vs Sri Krishna, thought that if the original ex parte order did not ensure throughout all future hearings it would be necessary to make a fresh ex parte order at each succeeding hearing.
But this proceeds on the mistaken assumption that an ex parte order is required.
The order sheet, or minutes of the proceedings, has to show which of the parties were present and if a party is absent the Court records that fact and then records whether it will proceed ex parte against him, that is to say, proceed in his absence, or whether it will adjourn the hearing; and it must necessarily record this fact at every subsequent hearing because it has to record the presence and absence of the parties at each hearing.
With all due deference to the learned Judges who hold this view, we do not think this is a grave or a sound objection.
A much weightier consideration is that the plaintiff may be gravely prejudiced in a given case because, as the PG NO 342 learned Rajasthan Judges point out, and as O 'Sullivan, J. thought, when a case proceeds ex parte the plaintiff does not adduce as much evidence as he would have if it had been contested.
He contents himself with leading just enough to establish a prima facie case.
Therefore, if he is suddenly confronted with a contest after he has closed his case and the defendant then comes forward with an army of witnesses he would be taken by surprise and gravely prejudiced.
That objection is, however, easily met by the wide discretion that is vested in the Court.
If it has reason to believe that the defendant has by his conduct misled the plaintiff into doing what these learned Judges apprehend, then it might be a sound exercise of discretion to shut out cross examination and the adduction of evidence on the defendant 's part and to allow him only to argue at the stage when arguments are heard.
On the other hand, cases may occur when the plaintiff is not, and ought not to be, misled.
If these considerations are to weigh, then surely the sounder rule is to leave the Court with an unfettered discretion so that it can take every circumstances into consideration and do what seems best suited to meet the ends of justice in the case before it." M/s. Paradise Industrial Corpn.
vs M/s. Kiln Plastics Products, ; was a case which arose under the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947.
The trial Judge passed an order directing the tenant to deposit certain amounts in court, in default, making the notice absolute and directing that the defence would be struck off and the suit fixed for ex parte hearing.
An ex parte decree followed.
A single Judge of the Bombay High Court set aside the ex parte decree on the ground that the above order was illegal and without jurisdiction as it did not conform to the provisions contained in section 11(4) of the Act in question which only provided that, in case the directions of the court are not complied with, the defendant "shall not be entitled to appear in or defend the suit except with leave of the Court, which leave may be granted subject to such terms and conditions as the Court may specify.
"It did not, in the view of the learned Judges, authorise the Court to strike off the defence straightaway.
Reversing this order of the leared Judge, this Court observed: "We are afraid the learned Judge of the High Court has missed the substance and chased the shadow.
The words "striking out the defence" are very commonly used by PG NO 343 lawyers.
Indeed the application made on February 24, 1969 by the plaintiffs was for a direction to order the defences of the defendants to be struck off in default of payment of the amount ordered by the Court.
The phrase "defence struck off ' or "defence struck out" is not unknown in the sphere of law.
Indeed it finds a place in Order XI Rule 21 of the Code of Civil Procedure . .
In effect; both mean the same thing.
Nobody could have misunderstood what was meant.
Indeed, one may even say that the phrase "the defence to be struck off" or "struck out" is more advantageous from the point of view of the defendants.
Even when a defence is struck off the defendant is entitled to appear, cross examine the plaintiff 's witnesses and submit that even on the basis of the evidence on behalf of the plaintiff a decree cannot be passed against him, whereas if it is ordered in accordance with Section 11(4) that he shall not be entitled to appear in or defend the suit except with the leave of the court he is placed at a greater disadvantage.
The use of the words 'defence struck off ' does not in any way affect the substance of the order and the learned Judge of the High Court was wholly in error in holding that because of the form of the order passed on June 2, 1969 the order was illegal and without jurisdiction.
The order squarely falls within Section 11(4).
What the law contemplates is not adoption or use of a formula; it looks at the substance.
The order is not therefore one without jurisdiction.
It is one which the Judge was competent to make.
Somewhat similar in nature are the observations made in M/s. Babbar Sewing Machine Company vs Trilok Nath Mahajan, ; while dealing with the provisions of Order XI Rule 21 of the C.P.C.
The court was of opinion that, for the nature of the default in the said case it was a travesty of justice that the trial court should have passed an order striking out the defence of the defendant and the High Court should have declined to set it aside.
In this context, after discussing the scope of Order XI Rule 21 as to the manner in which the discretion of the court should he exercised, the Court made certain general observations towards the end of the judgment of the following effect: "It was further contended that the High Court was in error in observing that 'in view of the clear language of PG NO 344 Order XI, Rule 21 ' the defendant has no right to cross examine the plaintiff 's witnesses.
A perusal of Order XI, Rule 21 shows that where a defence is to be struck off in the circumstances mentioned therein, the order would be that the defendant "be placed in the same position as if he has not defended".
This indicates that once the defence is struck off under Order XI, Rule 21, the position would be as if the defendant had not defended and accordingly the suit would proceed ex parte.
In Sangram Singh vs Election Tribunal, ; , it was held that if the court proceeds ex parte against the defendant under Order IX, Rule 6(a), the defendant is still entitled to cross examine the witnesses examined by the plaintiff.
If the plaintiff makes out a prima facie case the court may pass a decree for the plaintiff.
If the plaintiff fails to make out a prima facie case, the court may dismiss the plaintiff 's suit.
Every Judge in dealing with an ex parte case has to take care that the plaintiff 's case is, at least, prima facie proved.
But, as we set aside the order under Order XI Rule 21, this contention does not survive for our consideration.
We, therefore, refrain from expressing any opinion on the question.
" Our attention has also been invited to the incidental references by this Court to the aspect presently in issue before us while considering the questions, in the context of analogous provisions of the rent statutes, whether the Court has a discretion to extend the time for the deposits to be made by the tenant when there is no specific statutory provision to that effect and whether, where the tenant fails to make the deposit as directed, the Court is bound to strike out his defence or has a discretion to take or not to take this extreme step.
In Ram Chand vs Delhi Cloth & General Mills Co. Ltd., ; , this Court, on the language of the Delhi Rent Control Act agreeing with the High court ILR 1972 2 Delhi 503 on this point held that the Rent Controller has no power to condone the tenant 's default by extending the time for payment.
This Court, however, did not agree with the High Court 's view that the default of the tenant vested an indefeasible right in the landlord and entitled him to an order of eviction straightaway.
The Court observed: "While we agree with the view of the High Court that the controller has no power to condone the failure of the tenant to pay arrears of rent as required under section 15(1), we PG NO 345 are satisfied that the Full Bench fell into an error in holding that the right to obtain an order for recovery of possession accrued to the landlord.
As we have set out earlier, in the event of the tenant filing to comply with the order under section 15(1), the application will have to be heard giving an opportunity to the tenant if his defence is not struck out under section 15(7) and without hearing the tenant if his defence is struck out." (emphasis added) Shyamcharan Sharma vs Dharamdass, ; was a case under the Madhya Pradesh Accommodation Control Act.
The tenant had not been able to deposit the rents as per the directions of Court and sought an extension of time.
The landlord opposed the application for condonation of delay on the ground that the Court had no power to grant it.
This contention was rejected by the first court and first appellate court but the High Court accepted the plea and decreed the suit for eviction.
The Supreme Court allowed the tenant 's appeal.
It observed: "It is true that in order to entitle a tenant to claim the protection of section 12(3), the tenant has to make a payment or deposit as required by section 13, that is to say, the arrears of rent should be paid or deposited within one month of the service of the writ of summons on the tenant or within such further time as may be allowed by the court, and should further deposit or pay every month by the 15th, a sum equivalent to the rent.
It does not, however, follow that failure to pay or deposit a sum equivalent to the rent by the 15th of every month, subsequent to the filing 'of the suit for eviction, will entitle the landlord straightaway, to a decree for eviction.
The consequences of the deposit or payment and non payment or non deposit are prescribed by subss.
(5) and (6) of section 13.
Since there is a statutory provision expressly prescribing the consequence of non deposit or non payment of the rent, we must look to and be guided by that provision only to determine what shall follow.
section 13(6) does not clothe the landlord with an automatic right to a decree for eviction, nor does it visit the tenant with the penalty of a decree for eviction being straightaway passed against him.
section 13(6) vests, in the court, the discretion to order the striking out of the defence against eviction.
In other words, the Court, having regard to all the cir cumstances of the case, may or may not PG NO 346 strike out the defence.
If section 13 were to be construed as mandatory and not as vesting a discretion in the Court, it might result in the situation that a tenant who has deposited the arrears of rent within the time stipulated by section 13(1) but who fails to deposit thereafter the monthly rent on a single occasion for a cause beyond his control may have his defence struck out and be liable to summary eviction.
We think that section 13 quite clearly confers a discretion, on the court, to strike out not to strike out the defence, if default is made in deposit or payment of rent as required by section 13(1).
If the Court has the discretion not to strike out the defence of a tenant committing default in payment or deposit as required by section 13(1), the court surely has the further discretion to condone the default and extend the time for payment or deposit.
Such a discretion is a necessary implication of the discretion not to strike out the defence.
" The apparent conflict between these cases camp up for consideration in Ram Murti vs Bhola Nath, After considering the two earlier decisions, the Court observed: "It would be incongruous to hold that even if the defence of the tenant is not to be struck out under Section 15(7), the tenant must still be visited with the punishment of being deprived of the protection under Section 14(2).
In Hem Chand 's case the Court went to the extent of laying down that even if the defence of the tenant is struck out under Section l5(7), the Rent Controller could not straightaway make an order for eviction in favour of the landlord under Section 14(1)(a).
The Court held that the High Court was wrong in its assumption that failure to comply with the requirements of section 15(1) vests in the landlord an 'indefeasible right ' to secure an order for the eviction of the tenant under Section 14(1)(a).
The Court set aside the judgment of the High Court taking that view and remanded the matters to the Rent Controller observing that there was still an issue to be tried.
If that be so, the question at once arises, "what is the issue to be tried?" If the landlord has still to make out a case before the Rent Controller that he was entitled to an order for eviction of the tenant under section 14(1)(a), surely the tenant has the right to participate in the proceedings and cross examine the landlord.
It must logically follow as a necessary PG NO 347 corollary that if the defence is not to be struck out under Section 15(7) it means that the tenant has still the defences open to him under the Act.
In the premises, the conclusion is irresistible that he has the right to claim protection under Section 14(2).
What is of essence of Section 14(2) and of Section 15(6) is whether there has been a substantial compliance with the order passed under Section 15(1).
The words "as required by section 15(1)" in these provisions must be construed in a reasonable manner.
If the Rent Controller has the discretion under Section 15(7) not to strike out the defence of the tenant, he necessarily has the power to extend the time for payment of future rent under Section 15(1) where the failure of the tenant to make such payment or deposit was due to circumstances beyond his control.
The previous decision in Hem Chand 's case interpreting Section 15(7) and Section 14(2) in the context of Section 15(7) of the Delhi Rent Control Act, 1958, although not expressly overruled, cannot stand with the subsequent decision in Shyamcharan case interpreting the analogous provisions of the Madhya Pradesh Accommodation Control Act, 1961 as it is of a larger Bench." ( Underlining ours) One more decision of this Court to which counsel for the respondents referred may also be touched upon here, viz. Bela Das and others vs Samarendra Nath Bose, [1975] 2 S.C.R. 1004.
In that case, the respondent was a tenant of a certain premises in respect of which a suit for eviction had been filed.
The tenant was directed to pay into court the arrears and future rent but he did not comply with the order and his defence was struck out.
Thereafter, an ex parte decree of eviction was passed and confirmed by the first appellate court.
In second appeal, the High Court remitted the case to the trial court on the ground that, since the respondent had not admitted the appellants to be full owners of the premises but contended that other co sharers of the appellant 's family had also shares therein, there was a denial of the relationship of landlord and tenant and that the order striking out the respondent 's defence qua tenant did not prevent him from contesting the suit on the question of title.
The appeal against the High Court 's order was allowed by this Court.
The Court observed: "The defendant had admitted that he was the tenant under the plaintiffs but was merely asserting that there were some more landlords of the premises in question.
It was PG NO 348 not a case of denial of relationship of landlord and tenant between the parties.
In the case of Mahabir Ram, AIR 1968 Patna 415, the tenant had denied the title of the plaintiffs and set up a title in himself.
In the instant case the plea of the defendant has been that the plaintiffs being landlords of the suit premises for a moiety of share could not alone claim a decree for eviction against him.
Such a plea set up by the defendant to resist the suit for eviction was a plea qua tenant and not de hors it.
The striking out of the defence on 8.7.1964 had the effect of striking out all defence raised by the defendant qua tenant including his defence that the plaintiffs alone being co sharer landlords were not entitled to maintain the suit for eviction.
It may also be added that the learned Munsif in his order dated 8.7.1964 striking out the defence, which order was confirmed by a Bench of the High Court in Civil Revision No. 824 of 1964 decided on 21.4.1964, had pointed out on the basis of the defendant 's statements in his written statement as also in his rejoinder to the plaintiff 's petition under section 11A of the Act that the defendant had admitted that he was paying rent to the plaintiffs and had recognised them to be their landlords.
In that view of the matter also the plaintiffs were the landlords of the suit premises occupied by the defendant within the meaning of clause (d) of section 2 of the Act.
In either view of the matter there is no escape for the defendant in this case that his entire defence in the suit was in his capacity as a tenant and on its striking out it was struck out as a whole.
The hearing of the suit ex parte was, therefore, legal and valid.
The contrary view taken by the High Court is erroneous in law.
" A brief reference may now be made to the conflict of decisions in the Calcutta High Court which occasioned the reference to the Full Bench.
The first two cases were under the original side rules and concerned the consequences of a defendant failing to enter appearance in a suit.
In a very early decision in S.N. Banerjee vs H.S. Suhrawardy, AIR 1928 Cal.
772 Rankin, C.J. had observed, of the rights of a defendant who had not entered appearance, as follows: "If he does not enter appearance within the time limited the case will go into what is called the undefended list and when the case is on the undefended list it is not possible for the defendant without obtaining leave to enter PG NO 349 appearance.
He has a limited right to cross examine witnesses adduced on behalf of the plaintiff if he appears at the time when the undefended case is down for hearing, out his position is that of a man who for not entering appearance in time is precluded from defending the suit whether he appears at the hearing or does not appear at the hearing.
" Referring to these observations in Dabendra Nath Dutt vs Smt.
Satyabala Dassi and others, AIR 1950 Cal. 217, P.B. Mukharji, J. said: "Thus then there are two consequences of not entering appearance under the Rules.
One is that the suit is liable to be heard ex parte and the other is that no written statement can be filed.
In that context, I am not inclined to impose more punishment than those two so explicitly stated by the Rules.
Therefore I am of the opinion that a party subject to these handicaps imposed by the Rules can still appear, under the Civil Procedure Code when the suit is called on for hearing from the undefended list, not only to cross examine the witnesses of the plaintiff and demolish in such manner the plaintiffs case on evidence that the Court will not pass any decree in the plaintiff 's favour but also to make such arguments and submissions on law and on such evidence as the plaintiff may have brought to the Court.
These are, in my opinion, valuable rights under the Code which are not taken away by any Rules of the original side.
If that be so I fail to see why in such a case the terms of 0.9 Rr. 8 and 9 of the Code cannot be made applicable to the original side of this Court notwithstanding the technicalities of "entering appearance" as introduced by the Rules of the original side practice.
It may be that when because of the default in "entering appearance" the suit is liable to be heard ex parte, the defendant may not know or have notice when the suit is going to be heard.
But that is immaterial and that is a risk to which such a defendant makes himself open by such default.
But should he by any means whatever know that the suit is being heard from the undefended list he can nevertheless appear at such hearing and exercise the rights I have mentioned.
Rankin C.J. in the Court of appeal sees the possibility of cross examination in such a case by the defendant of plaintiff 's witnesses.
PG NO 350 I have not been able to persuade myself to take the view that a suit can only be defended by filing a written statement or by "entering appearance" under the Rules.
In my opinion filing of written statement is not the only way of defending a suit.
A defendant in my judgment may ably and successfully defend a suit against him by cross examination and arguments.
" In S.B. Trading Company Ltd. vs Olympia Trading Corpn.
Ltd., AIR 1952 Calcutta 685 Sarkar, J. (as His Lordship then was) had to consider the effect of strike off of defence under section 14(4) of the 1950 Act.
In that case, which was a suit for ejectment, the defence had been struck off as the defendants had not complied with an order made under section 14(4).
When the plaintiff proceeded to prove its claim for ejectment the defendants claimed to take part in the proceedings to oppose the decree for ejectment.
In the first place, they claimed that they were entitled to cross examine the plantiff 's witnesses and to address the court not as counsel but as agents of their clients.
The learned Judge declined the request.
He referred to the observations of P.B. Mukharji J. quoted earlier, that their rights were only aspects of the rights of defence and observed: "It seems to me that if I allow the defendants in this case to cross examine the plaintiff 's witnesses on their evidence as to the facts establishing the claim to ejectment and to address the Court with regard to that claim, I am really allowing the defendants to defend the claim against ejectment.
Section 14(4) says that this the defendants cannot do.
" The next question that arose was whether it was open to the defendants to contest the plaintiff 's claim that the defendant was not entitled to the benefit of the proviso to section 14(3).
The learned Judge also negatived this right.
He observed: "It would be a curious result and really would amount to annulling the provisions of sub section 4, if in spite of the defence being struck out, the defendants were in a position to contest the applicability of the proviso.
In my view, this latter argument of learned counsel for the plaintiff is plainly sound.
The proviso itself says that on certain things happening "the tenant shall not be entitled to the benefit of protection against eviction under this section.
"So, the proviso really contemplates a defence to the claim for ejectment, and if that defence is struck out, PG NO 351 it must necessarily mean that it is no longer open to the defendants to contest the existence of the facts giving rise to the applicability of the proviso.
I, therefore, reach the conclusion that the defendants will not be allowed to take any part in the proceedings for proof of the applicability of the proviso.
" The effect of a strike off of defence was expressed in even more forcible language by Chakravartti C.J.
In Gellatly vs Gannon, AIR 1953 Cal 409.
The learned Judge observed: "The language of section 14(4) is in no way qualified.
The policy of the section or, indeed, the whole Act seems to be that the Legislature is not minded to protect a tenant who will not even pay the monthly rent regularly.
If the tenant, on being directed to pay the current rent month by month, does not do so, the Act quite clearly provides that he will such conduct forfeit the special protection which the Act confers on tenants and will be relegated to his position the general law.
I do not find any justification in the language of section 14(4) to limit the defence against ejectment contemplated by it to defence against ejectment only on the ground mentioned in section 12(1)(i) of the Act.
" The question next arose before a Full Bench, consisting of section P. Mitra, C.J., M.M. Dutt, J. and A.K. De, J. in Gurudas Biswas vs Char Panna .
Seal, AIR 1977 Cal. 110 in the context of the 1956 Act.
One of the questions before the Full Bench was whether, in a suit for ejectment where the defence as to delivery of possession had been struckout under section 17(3) of the Act, the defendant could take thedefence of the non existence or invalidity of a notice under section 13(6) in the court below and in the court of appeal.
This question was answered in the affirmative, endorsing the conclusion reached in an of earlier decisions of the Court.
The reasoning was that the strike off only deprived the tenant of the special protection given to him under section 13(1) of the Act but did not preclude the necessity of the landlord having to prove the service of notice under section 13(6) of the Act which was a step to be taken before the filing of the suit.
The Court, however, observed: "To pass an ex parte decree in a suit for ejectment on or of the grounds in Section 13(1), the Court is required to decide, whether the suit is defended or not, (if the relation ship of landlord and tenant is not disputed as here PG NO 352 (a) whether the tenancy has been validly determined by a notice under Section 106, Transfer of Property Act, (b) whether a valid notice of suit was given before filing the suit (c) whether the ground alleged in the plaint to take away the tenant 's special protection conferred by Section 13(1), has been established on the evidence.
This is the requirement of Order 20, Rule 4, Civil Procedure Code, whether the suit is contested or not.
The Court cannot relieve itself of the necessity of complying with Order to, Rule 4 even if it strikes out the tenant s defence against delivery of possession or the written statement.
That being the position in law, it would be wrong, not to permit the tenant to contend and show, if possible, on plaintiffs evidence and materials as are on record, both at tile trial and also at the appeal stage, that the plaintiff is not entitled to the decree prayed for, though he would not be permitted either to cross examine plaintiffs witnesses, when they give evidence, or to call his own witnesses at the trial, if his defence is struck out. ' ' The above observations came up for consideration in Daya Moyee Sadhukhan vs Dal Singer Singh, AIR 1979 Cal 332.
In this case, on failure of the defendant to comply with the provisions of section l7(1) of the Act of 1956, his defence had been struck off.
Thereafter, at the hearing of the suit, the defendant was allowed to cross examine the plaintiff s husband On all issues but the defendant examined himself only on the question whether notice to quit i1ad been served properly in terms of section 106 of the Transfer of Property Act.
The landlord appellant argued before the High Court that as the defence had been struck out, the trial court was not justified in allowing the defendant to cross examine the plaintiff s witness and, in support of this contention reliance was placed on the observations in Gurudas Biswas vs Charu Panna Seal, AIR 1977 Cal. 110.
M.M. Dutt, J., delivering the judgment of the Bench, observed that, strictly speaking, the observations relied upon did not relate to the points that had been posed before the Full Bench for consideration and hence had no binding force.
He proceeded to consider the question on general principles.
He referred to Order 9, Rr. 6 and 7 of the C.P.C., the decision in Sangram Singh vs Election Tribunal, ; , Order I I Rule 21 of the C.P.C., the decisions in Paradise Industrial Corpn.
vs M/s. Kiln plastics Products, (supra) and the observations in Babbar Sewing Machine Company vs Trilok Nath Mahajan, (supra) and concluded: PG NO 353 "It is true that the Supreme Court did not express, any opinion on the question, but it is apparent that the Supreme Court was inclined to hold that the defendant was, entitled to cross examine the witnesses of the plaintiff.
The above decisions of the Supreme Court do not support the observations made in the Full Bench case referred to above, namely, that when the defence of the defendant has been struck out he would not be permitted to cross examine the plaintiff 's witnesses when they give evidence.
In the circumstances we hold that in a case where the defence of the defendant is struck out under the provision of section 17(3) of the West Bengal Premises Tenancy Act, 1956, the defendant will be entitled to cross examine the plaintiff 's witnesses on all the points.
There can be no doubt that his defence as to the service of the notice to quit and of suit will remain unaffected by the striking out of his defence against delivery of possession and he will be entitled to adduce evidence in support of that defence.
In other words, the defendant will be entitled to participate in the proceedings and make his submissions against the plaintiff 's case for delivery of possession.
The learned Judge was, therefore, justified in allowing the defendant to cross examine the plaintiff 's witness and to adduce evidence by examining himself on the point of notice.
" This is the background against which the issue has to be considered by us.
It would be useful for a proper appreciation of the two views if, at this stage, we summarise the pros and cons of the situation.
The points urged for the plaintiff are (a) In a statute hedged in with all protection to a tenant against eviction, one important safeguard to the landlord is in this provision which seeks to assure him at least of the prompt payment of the rents lawfully due to him.
The tenant is compelled to pay up the rent on pain of losing his right of defence against ejectment.
This is a provision which should be strictly enforced and full effect given to this right of the landlord.
(b) Defence being struk off does not merely mean the exclusion of the written statement or the positive case, if any.
which the defendant wishes to plead.
It means also the exclusion of all modes of his participation in the suit qua the plea of ejectment.
Cross examination of the plaintiff 's witnesses and putting forth arguments demolishing the PG NO 354 plaintiff 's case are as crucial and vital parts of the defence as the putting in of a written statement or examination of his own witnesses.
(c) In like situations any similar default on the part of the plaintiff will spell the dismissal of his suit.
(Order 11 Rule 21 C.P.C.) On like analogy, the defendant in default should be made liable for ex parte eviction straightaway.
Restrictions are already placed on this right of the plaintiff by requiring that he has to establish his case by leading evidence to substantiate the same.
There is no justification for imposing on him further handicap of the defendant 's participation, even to a limited extent.
(d) The concession that the defendant can cross examine the plaintiff 's witnesses or put forward arguments to demolish the plaintiff 's case will lead to confusion and practical difficulties.
The pleas sought to be taken by the defence in section B. Trading Co. vs Olympia Trading Coprn.
Ltd., AIR 1952 Cal.
685 and in Bela Das vs Samarendra Nath Bose, ; (e) Apart from the view of Sarkar, J. and the decision of the Full Bench in Gurudas Biswas vs Charu Panna Seal, AIR 1977 Cal. 110, the Patna High Court in Ganesh Ram vs Smt.
Ram Lakhan Devi, also has taken to similar view and held that such a defendant cannot be allowed to lead evidence in support of his pleas in defence.
(f) Under Order 8 Rule 5 of the C.P.C., when there is no written statement, the averments in the plaint are to be taken as correct and, if they are sufficient under the terms of the statute, a decree has to follow as a matter of course.
On the other hand, the aspects stressed by the defendant are: (a) The expression "defence being struck out" obviously relates to the consideration of a document being ruled out.
PG NO 355 It suggests that the intention is only that the written statement should be excluded from consideration.
Even treating the expression as equivalent to a direction that the court should proceed as if the defendant had not entered appearance at all, the tenant 's position cannot be worse than that of a similarly placed defendant under the Original Side Rules of the Calcutta High Court or under the C.P.C. (b) It is well established that mere absence of defence cannot make the plaintiff entitled to a decree straightaway.
Defence or no defence, the plaintiff in a suit has to satisfy the court that he has a case which deserves to be decreed.
In particular, in an eviction suit, under the rent laws, the court has to be satisfied that the statutory conditions justifying eviction are fulfilled.
This the plaintiff can establish only by leading evidence and such evidence will not be worth anything unless tested by cross examination.
The cross examination of the plaintiff 's witnesses is more an integral part of the plaintiff 's case than an aspect of defence.
(c) The Calcutta High Court has uniformly held that, even in an undefended action, a challenge on ground of non issue or invalidity of the notice under section 13(6) would be available to the defendant.
Though the notice has to be issued prior to the institution of a suit and, in this sense, is a pre condition to the filing of the suit, the non issue or invalidity is just one of the pleas that can be raised in defence.
If a tenant whose defence is struck off can raise that plea, there is no reason why he should not be allowed to do other things to show that the plaintiff is not entitled to a decree.
(d) The observations of this Court in Sangram Singh, Paradise Industrial Corpn.
and Eabbar Sewing Machine Company, (supra) are categorical and directly on this aspect of procedural law and deserve to be followed in the context of like provisions of tenancy legislations as well.
We have considered the contentions urged on behalf of both the parties and the respective view points of the two lines of decisions of the High Court.
We have also perused the decisions of this Court to which reference has been made.
Though none of them is a direct decision on the issue before us, the observations made, in so far as they enunciate general principles and relate to analogous statutory provisions are most helpful and instructive.
After PG NO 356 giving careful thought to all the aspects, we have come to the conclusion that the view expressed in the case under appeal by Ramendra Mohan Dutta, Acting Chief Justice, is preferable to the view taken by the other two learned Judges.
It is a more liberal and equitable view and also one consistent with the requirements of justice in such cases.
We proceed now to set out the reasons for our conclusion.
A provision like the one in section 17(4) is a provision in terrorem.
It penalises the defendant for certain defaults of his.
As pointed out by the decisions earlier referred to, the court will act with great circumspection before striking out the defence of a tenant under this provision.
This Court has interpreted provisions like this in rent acts to say that striking off of defence is not obligatory on the court merely because there is a default and that it is a matter for exercise of great judicial restraint.
But it does not necessarily follow that, once the defence is struck off, the defendant is completely helpless and that his conduct of the case should be so crippled as to render a decree against him inevitable.
To hold so would be to impose on him a punishment disproportionate to his default.
The observations made by this Court, while discussing the provisions of the Code of Civil Procedure, and the Original Side rules of the Calcutta High Court which deal with some what analogous situations, cannot be lightly brushed aside.
I hose decisions have enunciated a general equitable principle.
We are also of the same view that provisions of this type should be construed strictly and that the disabilities of a person in default should he limited to the minimum extent consistent with the requirements of justice.
This should be all the more so in the context of a tenancy legislation.
the main object of which is to confer protection on tenants against eviction by the landlord.
unless certain statutory conditions are fulfilled.
I he provisions should not be given any wider operation than could have been strictly intended by the legislature.
It has already been noticed that, in the Calcutta High Court.
there has been unanimity on the point that, even where defence is struck out, the validity of the notice under section 13(6) is challengeable.
This has been the settled view of that court for several years now which it would be inequitable to disturb after such a long time.
This type of cases, however, has been sought to be distinguished on the ground that such notice is a condition precedent to the institution of the suit and cannot perhaps be described as a defence to the suit.
This, however, is too tenuous a distinction.
For, in truth and substance the plea regarding the validity of the notice has invariably to be taken as a plea in defence in such suits.
The rule, therefore, is PG NO 357 really an exception to the strict application of a rule that a tenant whose defence is struck off cannot be heard at all against the plea of ejectment.
We agree that full effect should be given to the words that defence against ejectment is struck off.
But does this really deprive the defendant tenant of further participation in the case in any manner? While it is true that, in a broad sense, the right of defence takes in, within its canvass, all aspects including the demolition of the plaintiff 's case by the cross examination of his witnesses, it would be equally correct to say that the cross examination of the plaintiff 's witnesses really constitutes a finishing touch which completes the plaintiff 's case.
It is a well established proposition that no oral testimony can be considered satisfactory or valid unless it is tested by cross examination.
The mere statement of the plaintiff 's witnesses cannot constitute the plaintiff 's evidence in the case unless and until it is tested by cross examination.
The right of the defence to cross examine the plaintiff 's witnesses can, therefore, be looked upon not as a part of its own strategy of defence but rather as a requirement without which the plaintiff 's evidence cannot be acted upon.
Looked at from this point of view it should be possible to take the view that, though the defence of the tenant has been struck out, there is nothing in law to preclude him from demonstrating to the court that the plaintiff 's witnesses are not speaking the truth or that the evidence put forward by the plaintiff is not sufficient to fulfill the terms of the statute.
To us it appears that the basic principle that where a plaintiff comes to the court he must prove his case should not be whittled down even in a case where no defendant appears.
It will at once be clear that to say that the Court can only do this by looking the plaintiff 's evidence and pleadings supplemented by such questions as the court may consider necessary and to completely eliminate any type of assistance from the defendant in this task will place the court under a great handicap in discovering the truth or otherwise of the plaintiff 's statements.
For after all, the court on its own motion, can do very little to ascertain the truth or otherwise of the plaintiff 's averments and it is only the opposite party that will be more familiar with the detailed facts of a particular case and that can assist the court in pointing out defects, weaknesses, errors and inconsistencies of the plaintiff 's case.
We, therefore, think that the defendant should be allowed his right of cross examination and arguments.
But we are equally clear that this right should be subject to PG NO 358 certain important safeguards.
The first of these is that the defendant cannot be allowed to lead his own evidence.
None of the observations or decisions cited have gone to the extent of suggesting that, inspite of the fact that the defence has been struck off, the defendant can adduce evidence of his own or try to substantiate his own case.
Secondly, there is force in the apprehension that if one permits cross examination of the plaintiff 's witnesses by the defendant whose defence is struck off, procedural chaos may result unless great case is exercised and that it may be very difficult to keep the cross examination within the limits of the principles discussed earlier.
Under the guise of cross examination and purported demolition of the plaintiff 's case, the defendant may attempt to put forward pleas of his own.
To perceive quickly the difference between questions put out to elicit a reply from the plaintiff which may derogate from his own case and questions put out to substantiate pleas in defence which the defendant may have in mind and to restrict the cross examination to its limits will be not easy task.
We think, however, that this is a difficulty of procedure, rather than substance.
As pointed out by Ramendra Mohan Dutta, J. this is a matter to be sorted out in practical application rather than by laying down a hard and fast rule of exclusion.
A third safeguard which we would like to impose is based on the observations of this court in Sangram Singh 's case.
As pointed out therein, the essence of the matter in all such cases is that the latitude that may be extended by the court to the defendant inspite of his not having filed a written statement, should not cause prejudice to the plaintiff.
Where the defendant does not file a written statement or where he does not appear to contest the case the plaintiff proceeds on the basis that there is no real opposition and contents himself by letting in just enough evidence to establish a prima facie case.
Therefore, the court should ensure that by permitting the defendant at a later stage either to cross examine the witnesses or to participate in the proceeding the plaintiff is not taken by surprise or gravely prejudiced.
This difficulty however can be easily overcome in practice, because there is a wide discretion with the court and it is always open to the court, where it believes that the plaintiff has been misled, to exercise its discretion to shut out cross examination or to regulate it in such manner as to avoid any real prejudice to the interests of the plaintiff.
An objection to our above conclusion has been raised on the basis of the provisions of Order VIII of the Code of Civil Procedure.
Rules 1, 5 and 10 of this Order have been PG NO 359 recently amended by the Amendment Act of 1976.
We find nothing in these rules which will support the contention urged on behalf of the respondents.
Rule 1 merely requires that the defendant should present a written statement of his defence within the time permitted by the court.
Under rule 5(2), where the defendant has not filed a pleading it shall be lawful for the court to pronounce judgment on the basis of the facts contained in the plaint except against a person under disability but the court may in its discretion require any such fact to be proved.
Again under rule 10 when any party from whom a written statement is required fails to present the same within the time permitted or fixed by the court, the court "shall pronounce judgment against him or make such order in relation to the suit as it thinks fit.
" It will be seen that these rules are only permissive in nature.
They enable the court in an appropriate case to pronounce a decree straightaway on the basis of the plaint and the averments contained therein.
Though the present language of rule 10 says that the court "shall" pronounce judgment against him, it is obvious from the language of the rule that there is still an option with the court either to pronounce judgment on the basis of the plaint against the defendant or to make such other appropriate order as the court may think fit.
Therefore, there is nothing in these rules, which makes it mandatory for the court to pass a decree in favour of the plaintiff straightaway because a written statement has not been filed.
Reference was made before us to sub rule 1 of rule 5.
This sub rule, however, has application only in a case where a pleading is filed but does not contain a specific or implicit denial of the averments contained in the plaint or other document to which it is a reply.
Rule 5(1) cannot be made use of to sustain the contention that where there is no written statement the court is bound to accept the statements contained in the plaint and pass a decree straightaway.
These provisions of the Code of Civil Procedure, far from supporting the contentions of the plaintiff that a decree on the basis of the plaint should follow a failure to file the written statement.
rather indicate a contrary position, namely, that even in such cases, it is a matter for the court to exercise a discretion as to the manner in which the further proceedings should take place.
We, therefore, do not think that the terms of Order VIII in any way conflict with the conclusion reached by us.
For the above reasons, we agree with the view of Ramendra Mohan Dutta, ACJ that, even in a case where the defence against delivery of possession of a tenant is struck off under section 17(4) of the Act, the defendant, subject to the exercise of an appropriate discretion by the court on the facts of a particular case, would generally be entitled: PG NO 360 (A) to cross examine the plaintiff 's witnesses; and (b) to address argument on the basis of the plaintiff 's case.
We would like to make it clear that the defendant would not be entitled to lead any evidence of his own nor can his cross examination be permitted to travel beyond the very limited objective of pointing out the falsity or weaknesses of the plaintiff 's case.
In no circumstances should the cross examination be permitted to travel beyond this legitimate scope and to convert itself virtually into a presentation of the defendant 's case either directly or in the form of suggestions put to the plaintiff 's witnesses.
For reasons mentioned above, we allow the appeal and restore the suit before the trial Judge for being proceeded with in the light of the above conclusions.
We direct that the costs of this appeal will form part of the costs in the suit and will abide by the result thereof.
S.L. Appeal allowed.
[/INST]Execution applications were filed by the Appellant under section 21 of the Delhi Rent Control Act, 1958 for obtaining possession of the portions in the occupation of the respondents Tenants.
The appellant 's case was that she obtained s motion of the Additional Rent Controller on 26/27th February, 1976 and thereafter leased out specified portions in her property to the respondents under separate leases for a limited period of two years commencing from March 1, 1976.
The rear portion in the ground floor was leased out to one tenant and the first and second floor were leased out to another tenant.
Each tenant was to pay a sum of Rs.850 per month.
The execution applications were filed by the appellant against the two respondents as they failed to vacate the portion leased out to them at the end of the two year period.
The two respondents put up a common defence contending, that there was a single tenancy and not two tenancies, they were jointly inducted into possession of the entire leased portion in the month of December, 1975, under an oral lease and the tenancy was therefore not referable to the sanction given by the Additional Rent Controller on 26/27th February, 1976.
They placed reliance on the payment of Rs.1,700 on 10th December, 1975 as security deposit, and three months advance payment of rent of Rs.5,100 by means of cheque on 29th December, 1975.
The Rent Controller after inquiry and consideration of the accepted the case of the respondents, and held that an oral having been granted in favour of the respondents even in the month of December, 1975 their tenancy rights were not governed by the sanction given by the Additional Rent Controller under section 2l, and that sanction of the Rent Controller was vitiated by fraud in that it was by supressing the true facts from the notice of the Rent Controller.
The execution applications were accordingly dismissed.
PG NO 241 PG NO 242 In the appeals preferred to the Rent Control Tribunal, it was held that even if the respondents had been inducted into possession in December 1975 under an oral tenancy they must be deemed to have impliedly surrendered their earlier tenancy the sanction granted by the Rent Controller on 2h/27th February, 1976.
It was further held that the respondents ought to have brought to the notice of the Rent Controller without delay the fraud practised by the appellant and since they have failed to act promptly they were not entitled to seek nullification of the sanction of the Rent Controller.
The Tribunal allowed the appeals, held the execution applications were maintainable, and directed respondents to deliver possession to the appellant in a month 's time.
Second appeals were filed by respondents to the High Court, which were allowed.
It was held that as the respondents were already given tenancy rights they would not be governed by the sanction given by the Rent Controller on 26/27th February, 1976, that the sanction order itself was unenforceable as it was vitiated by fraud, and that no question of implied surrender of the earlier tenancy would arise, when the Rent Controller gave sanction for limited tenancy rights.
The High Court restored the order of the Rent Controller dismissing the execution appeals.
Dismissing the appeals by the landlord, the Court, HELD: 1.
What section 21 envisages is the creation of tenancy rights after getting the sanction of the Rent Controller.
Such being the case, the landlord should make known to the Rent Controller, if there is already a tenant in occupation of the premises, the factum of his possession and the terms of the tenancy and satisfy the Rent Controller that notwithstanding a tenant being in occupation of the premises under an earlier tenancy he should be granted sanction under section 21 to confer limited tenancy rights in favour of the existing tenant himself or in favour of new tenant.
[249D E] 2.
Section 21 was not intended to obtain 'post facto ' sanction of a tenancy that had already been created by supressing relevant information from the Rent Controller so as to enable the landlord to straight away recover possession of the leased property by filing an application under section 21 after the expiry of the period for which permission to lease had been granted by the Rent Controller.
[249E F] PG NO 243 3.
Besides what the parties say, the Rent Controller has to apply his mind before granting sanction under section 21 because the order passed by him has legal consequences and will govern the rights of the parties to the tenancy that is to follow in terms of the sanction.
[251C] S.B. Noronah vs Prem Kumari, [1980] I SCR 281; J.R. Vohra vs Indian Export House Pvt. Ltd., ; at 723; Inder Mohan Lal vs Ramesh Khanna, [1987] IV SCC 1 at page 9; and Joginder Kumar Butan vs R.P. Oberai, [1987] (IV) SCC page 20 at 29 referred to.
A statement made in contravention of facts, whether made by one or both the contracting parties, cannot alter the truth of the situation or cure the lacuna of withholding of relevant information.
[249H] In the instant case, it is inconceivable that irrespective of the differences in the size and nature of the two portions, the respondents would have consented to pay the same rate of rent to the appellant for the portions alleged to have been leased out to them.
The tenancies Granted to the two respondents are for the same period i.e. from March 1, 1976 to 28 February.
If all these factors are taken note of the only conclusion that can be reached is that only a single tenancy in favour of both the respondents should have been created for the entire leased portion and not two tenancies, one for the ground floor, and the other for the first and second floor.
The story of two tenancies put forward by the appellant is a make believe affair.
[248B D] In the instant case, when the appellant had already put the re spondent in possession of the property in December, 1975, she could not have bona fide made a statement before the Rent Controller that she would not be requiring the premises for her own occupation from 1st March 1976 onward for a period of two years.
The fact that respondent 910 appeared before the Rent Controller and gave statements in tune with the statement made by the appellant cannot improve the situation in any manner.
[249G H] 5.
The sanction obtained from the Rent Controller under Section 21 was vitiated by fraud and therefore a nullity.
It could therefore not be said that by reason of the respondents having agreed to take limited ten tenancy rights under the order of Rent Controller for a period of two years commencing from March 1, 1976 they must be deemed to have impliedly surrendered their earlier tenancy rights as envisaged under clause (f) of section 111 of the Transfer of Property Act.[252C E] PG NO 244 Doe d. Earl of Egrement vs Courtenay, , referred.
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<s>[INST] Summarize the judgementNo. 110 of 1964.
Petition under article 32 of the Constitution of India for the enforcement of fundamental rights.
B. Sen and B. N. Kirpal, for the petitioner.
422 C. K. Daphtary, Solicitor General and B. R. G. K. Achar, for the respondent Nos. 1 and 2.
The Judgment of the Court was delivered by Wanchoo, J.
This petition under article 32 of the Constitution is a sequel to the judgment of this Court in T. Devadasan vs Union of India(1).
The petitioner was Assistant in Grade IV of the Central Secretariat Service.
The next post which the petitioner could expect to get was of Section Officer (Assistant Superintendent).
Recruitment to the post of Section Officer is made in the following manner : (i)50% by direct recruitment from those who obtain lower ranks in the Indian Administrative Service etc.
examinations.
(ii)25 % by promotion from Grade IV on the basis of a departmental examination held at intervals by the Union Public Service Commission, and (iii) 25 % by promotion from Grade IV on the basis of seniority cum fitness.
In February 1960 the Union Public Service Commission issued a notification to the effect that a limited competitive examination for promotion to the post of Section Officers would be held in June 1960.
The notification further stated that reservation of 121% of the available vacancies would be made for members of scheduled castes and 5% for the members of scheduled tribes.
The number of vacancies to be filled was to be announced later.
The petitioner sat for this examination and he is said to have secured the 37th position in order of merit.
Later, a press communique was issued by the Union Public Service Commission in the which it was stated that the number of vacancies expected to be filled was 48 out of which 32 were reserved for schedule castes and scheduled tribes and 16 were unreserved.
Eventually however the Union Public Service Commission recommended 45 names for appointment, 16 of which were unreserved and 29 were reserved against vacancies for scheduled castes and scheduled tribes.
Finally, however, the Government made only 43 appointments, 15 in the unreserved quota and 28 in the reserved quota.
This heavy reservation for scheduled castes and scheduled tribes was made on the basis of the "carry forward" rule which was put into force from 1955.
According to the resolution of the Ministry of Home Affairs dated September 13, 1950 reservation for scheduled castes and (1) ; 423 scheduled tribes was fixed at 121% and 5% respectively without anything like the 'carry forward" rule.
In 1952 however supplementary instructions were issued in this connection in the following terms : "5(3).
If a sufficient number of candidates of the communities for whom the reservations are made, who are eligible for appointment to the post in question and are considered by the recruiting authorities as suitable in all respects for appointment to the reserved quota of vacancies, are not available the vacancies that remain unfilled will be treated as unre served and filled by the best available candidates; but a corresponding number of vacancies will be reserved in the following year for the communities whose vacancies are thus filled up in addition to such number as would originally be reserved for them under the,orders contained in the.
Resolution.
"5(4).
If suitably qualified candidates of the communities for whom the reservations have been made are again not available to fill the vacancies carried forward from the previous year under clause (3) above, the vacancies not filled by them will be treated as unreserved and the reservations made in those vacancies will lapse.
As a result of these instructions reserved vacancies for scheduled castes and scheduled tribes which could not be filled in one examination would be carried forward to the next examination.
But if sufficient number of scheduled caste and scheduled tribe candidates were not available to fill the vacancies carried forward plus vacancies of the next year the vacancies were to be treatd as unreserved and the reservation made in those vacancies would lapse.
Thus according to 1952 instructions the carry forward was only for two years and thereafter there was no carry forward in 1955 however.
Government made further change in the carry forward rule and paras.
5 (3 ) and 5 (4) of the instructions of 1952 were substituted thus '5 (3 ) (a).
If a sufficient number of candidates, considered suitable, by the recruiting authorities, are not available from the communities for whom reservations are made, in a particular year, the unfilled vacancies should be Mated as unreserved and filled by the best available candidates.
The number of reserved vacancies thus treated as unreserved will be added as an additional quota to the number that would be reserved in the L3 Sup./65 11 424 following year in the normal course; and to the extent to which approved candidates are not available in that year against this additional quota, a corresponding addition should be made to the number of reserved vacancies in the second following year. "Thus the number of reserved vacancies of 1954 which were treated as unreserved for want of suitable candidates in that year will be added to the normal number of reserved vacancies in 1955.
Any recruitment against these vacancies in 1955 will first be counted against the additional quota carried forward from 1954.
If however suitable candidates are not available in 1955 also and a certain number of vacancies are treated accordingly as 'unreserved ' in that year, the total number of vacancies to be reserved in 1956 will be un utilised balance of the quota carried forward from 1954 and 1955 plus the normal percentage of vacancies to be reserved in 1956.
The un utilised quota will not, however, be carried forward in this manner for more than two years. "An annual report of reserved vacancies which were treated as unreserved for want of suitable candidates from scheduled castes or scheduled tribes as the case may be should be forwarded to the Ministry of Home Affairs in the form enclosed as Annexure I along with the annual communal returns already prescribed.
In addition Ministries themselves will take adequate steps to ensure that any lapse on the part of subordinate authorities in observing the reservation rules cannot go unnoticed by a reviewing authority within the Ministry itself at a sufficiently early date. " (b) In the event of a suitable scheduled caste candidate not being available, a scheduled tribe candidate can be appointed to the reserved vacancy and vice versa subject to adjustment in the subsequent point.% of the roster.
" The result of this change was to carry forward the unfilled vacancies for two years and thus in the third year the vacancies to be filled by scheduled caste and scheduled tribe candidates would be the un utilised balance from the previous two years plus the normal percentage of the vacancies reserved in the third year.
Unlike the rule of 1952, this rule did not provide for any lapse 425 but said that the un utilised quota will not however be carried forward in this manner for more than two years.
The result of the substitution of the 1955 rule was that paras.
5(3) and 5(4) of the 1952 rule ceased to exist and it was in pursuance of the 1955 rule that the Union Public Service Commission announced as already indicated that out of 48 expected vacancies, 16 would be unreserved and 32 would be reserved for scheduled caste and scheduled tribe candidate& Ibis reservation was attacked in the, case of Devadasan(1) and this Court struck down the carry forward rule of 1955 (in place of paras 5(3) and 5(4) of the 1952rule) on the ground that the carry forward rule as modified in 1955 was unconstitutional.
No other relief besides the declaration that the 1955 carry forward rule was unconstitutional was granted in Devadasan 's case(1).
It was however hoped that the department concerned would implement the decision of this Court in an appropriate manner.
The petitioner contends that the effect of this Court 's judgment in Devadasan 's case(1) is that there is no carry forward rule in existence as the 1955 carry forward rule was struck down by this Court and the 1952 rule had ceased to exist by the substitution made by the Government of India in 1955.
The petitioner further contends that in view of there being no carry forward rule either of 1952 or of 1955 after the judgment of this Court in Devadasan 's case(1) all that the Government of India could do in the matter of reservation for the examination conducted in 1960 was to reserve 12 1/2% of the vacancies for scheduled castes and for scheduled tribes.
In the alternative it is submitted that if the carry forward rule of 1952 is still deemed to exist that rule is also bad being violative of article 16 of the Constitution.
The petitioner finally contends that the carry forward rules of 1952 and 1955 being out of this way and the only reservation that was possible in the examination of 1960 being 12 1/2% for scheduled castes and 5 % for scheduled tribes, he was entitled to be appointed ' on that basis.
He therefore prays that a direction should be issued setting aside appointments of certain candidates belonging to scheduled castes and scheduled tribes over and above the reserved quota of 171 % and the Union Public Service Commission should be directed to announce the result of the said examination afresh after receiving 12 1/2 % of the vacancies for scheduled castes and 5% for scheduled tribes.
The application is opposed on behalf of the Union of India and the main contention urged is that even if the carry forward rule (1) ; 426 of 1952 is deemed to be non existent because it was substituted by the carry forward rule of 1955, the petitioner would not be entitled to be appointed in any case in view of the position he had secured in the examination.
The first question therefore that arises is whether the carry forward rule of 1952 can still be said to exist.
The next question is whether the carry forward rule of 1952, if it still exists is bad for the same reasons as the carry forward rule of 1955, as held by this Court in Devadasan 's case(1).
The last question is whether the petitioner would be entitled to appointment even if the carry forward rule of 1952 does not exist.
We shall first consider the question whether the carry forward rule of 1952 still exists.
It is true that in Devadasan 's case(1), the final order of this Court wag in these terms : "In the result the petition succeeds partially and the carry forward rule as modified in 1955 is declared invalid.
" That however does not mean that this Court held that the 1952rule must be deemed to exist because this Court said that the carry forward rule as modified in 1955 was declared invalid.
The carry forward rule of 1952 was substituted by the carry forward rule of 1955.
On this substitution the carry forward rule of 1952 clearly ,Ceased 'to exist because its place was taken by the carry forward rule of 1955.
Thus by promulgating the new carry forward rule in 1915, the government of India itself cancelled the carry forward rule,of 1952.
When therefore this Court struck down the carry forward rule as modified in 1955 that did not mean that the carry forward rule of 1952 which had already ceased to exist, because the Government of India itself cancelled it and had substituted a modified rule in 1955 in its place, could revive.
We are therefore of opinion that after the judgment of this Court in Devadasan 's case(1) there is no carry forward rule at all, for the carry forward rule of 1955 was struck down by this Court while the carry forward rule of 1952 had ceased to exist when the Government of India substituted the carry forward rule of 1955 in its place.
But it must be made clear that the judgment of this Court in Devadasan 's case(2) is only concerned with that part of the instructions of the Government of India which deal with the carry forward rule; it does not in any Way touch the reservation for scheduled castes and scheduled tribes at 12 1/2% and 5% respectively; nor does it touch the filing up of scheduled tribes vacancies by scheduled ; 427 caste candidates where sufficient number of scheduled tribes are not available in a particular year or vice versa, The effect of the judgment in Devadasan 's case(1) therefore is only to strike down, the carry forward rule and it does not affect the year to year reservation for scheduled castes and sheduled tribes or filling up of scheduled tribe vacancies by a member of scheduled castes in a particular year if a sufficient number of scheduled tribe candidates are not available in that year or vice versa.
This adjustment in the reservation between scheduled castes and tribes has nothing to do with the carry forward rule from year to year either of 1952 which, had ceased to exist or of 1955 which was struck down by this Court.
In this view of the matter it is unnecessary to consider whether the carry forward rule of 1952 would be unconstitutional, for that rule no longer exists.
This brings us to the last question whether the petitioner would be entitled to appointment on the basis that there was no carry forward rule in existence in 1960.
Originally it was notified that the number of vacancies expected were 48.
On that basis the reservation for scheduled castes would be 6 and for scheduled tribes would be 2.4.
But as it is impossible to get 2.4 individuals and the reservation for scheduled tribes is a minimum of 5%, they would be entitled to three vacancies.
Thus out of 48 expected vacancies, 9 would be reserved vacancies and 39 would be unreserved.
Actually however the Public Service Commission recommended only 45 names.
On the basis of 45, scheduled castes would be entitled to 5.625 vacancies (i.e. 6 vacancies) while scheduled tribes would be entitled to 2.25 vacancies (i.e. 3 vacancies).
In actual effect however because one of the candidates recommended in the reserved quota died and one of the candidates out of the unreserved quota was appointed to another service, the Government of India made only 43 appointments.
On this basis, the scheduled castes would be entitled to 5.375 vacancies (i.e. 6 vacancies) and the scheduled tribes to 2.15 vacancies (i.e. 3 vacancies).
Thus on the actual appointments made the total reservation for scheduled castes and scheduled tribes would be 9 while 34 would be available for the unreserved quota.
The petitioner secured 37th place in the unreserved quota.
Out of these 37, one unreserved candidate was recruited to another service and thus the petitioner 's position may conceivably be said to have bettered and become 36th.
According to the calculation which we have already indicated, 9 out of 43 vacancies actually filled will go to scheduled castes and scheduled tribes together and 34 (1) ; 428 would go to the unreserved quota.
The petitioner however was 36th on the unreserved quota and therefore even on the basis of there being no carry forward rule only 34 candidates would be appointed from the unreserved quota and the petitioner being 36th on his own showing can not claim appointment.
The petition therefore fails.
In the circumstances we make no order as to costs.
Petition dismissed.
[/INST]In 1951, several State legislative measures passed for giving effect to a policy of agrarian reform faced a serious challenge in the Courts.
In order to assist the State Legislatures to give effect to the policy, articles 31A and 31B were added to the Constitution by the Constitution (First.
Amendment) Act, 1951.
Article 31B provided that none of the Acts specified in the Ninth Schedule to the Constitution shall be deemed to be void or ever to have become void.
In 1.955, by the Constitution (Fourth Amend ment) Act, article 31A was amended.
Notwithstanding those amendments some legislative measures adopted by different States for giving effect to the policy were effectively challenged.
In order to save the validity of those Acts as well as of other Acts which were likely to be struck down, Parliament enacted the Constitution (Seventeenth Amendment), Act 1964, by which article 31A was again amended and 44 Acts, were added to the Ninth Schedule.
The petitioners in the Writ Petitions in Supreme Court, and interveners, were persons affected by one or other of those Acts.
They contended that none of the Act by which they were affected could be saved because the Constitution (Seventeenth Amendment) Act was constitutionally invalid.
It was urged that : (i) Since the powers prescribed by article 226, which is in Chapter V, Part VI of the Constitution, were likely to be affected by Seventeenth Amendment, the special procedure laid down in the proviso to article 368, namely ' requiring the ratification by not less half the number of States, should be followed; (ii) The decision in Sri Sankari Prasad Singh Deo vs Union of India and State of Bihar, ; , which negatived such a contention when dealing with the First Amendment, should be reconsidered; (iii) The Seventeenth Amendment Act was a legislative measure in respect of land and since Parliament had no right to make a law in respect of land, the Act was invalid and (iv) Since the Act purported to set aside decisions of Court of competent jurisdiction, it was unconstitutional.
HELD (by P. B. Gajendragadkar C. J., Wanchoo, and Raghubar Dayal JJ.) : (i) The main part of article 368 and its proviso must on a reasonable construction be harmonised with each other in the sense that the scope and effect of either of them should not be allowed to be unduly reduced or enlarged.
Such a construction requires that if amendment of the fundamental rights is to make a substantial inroad on the High Court 's powers under article 226, it would become necessary to consider whether the proviso to article 368 would cover such a case.
If the effect is indirect, incidental or otherwise of an insignificant order the proviso may not apply.
In dealing With such a question, the test to be adopted is to find the pith and substance of the impugned Act.
So tested it is clear that the Constitution (Seventeenth Amendment) Act amends the fundamental rights solely with the object of removing obstacles in the fulfilment of a socioeconomic policy.
Its effect 934 on article 226 is incidental and insignificant.
The Act therefore falls under the substantive part of article 368 and does not attract the proviso.
[940 D E; 941 B E; 944 D F] (ii) On the contentions urged there was no justification for reconsidering Shankari Prasad case.
[947 G H] Though the Constitution is an organic document intended to serve as a guide to the solution of changing problems the Court should be reluctant to accede to the suggestion that its earlier decisions should be lightheartedly reviewed and departed from.
In such a case the test is : Is it absolutely and essential that the question already decided should be reopened.
The answer to the question would depend on the nature of the infirmity alleged in the earlier decision, its import on public good and the validity and compelling character of the considerations urged in support of the contrary view.
It is therefore relevant and material to note that if the argument urged by the petitioners were to prevail, it would lead to the inevitable consequence that the amendments of 1951 and 1955 and a large number of decisions dealing with the validity of the Acts in the Ninth Schedule would be exposed to serious jeopardy.
[948 E H; 949 A B] (iii) Parliament in enacting the impugned Act was not making any provision of land Legislation but was merely validating land Legislation already passed by the State Legislatures in that behalf.
[945 C] (iv) The power conferred by article 368 on Parliament can be exercised both prospectively and retrospectively.
It is open to Parliament to validate laws which have been declared invalid by courts.
[945 E F] (v) The power conferred by article 368, includes the power to take away the fundamental rights guaranteed by Part III.
In the context of the constitution it includes the power of modification, or changing the provisions, or even an amendment which makes the said provisions inapplicable in certain cases.
The power to amend is a very wide power and cannot be controlled by the literal dictionary meaning of the word "amend".
The expression "amendment of the Constitution" plainly and unambiguously means amendment of all the provisions of the Constitution.
The words used in the proviso unambiguously indicate that the substantive part of the Article applies to all the provisions of the Constitution.
A B; 951 B] The word "law" in article 13(2) does not include a law passed by Parliament by virtue of its constituent power to amend the Constitution.
if the Constitution makers had intended that any future amendment of the provisions in regard to fundamental rights should be subject to article 13(2), they would have taken the precaution of making a clear provision in that behalf.
It would not be reasonable to proceed on the basis that the fundamental rights in Part III were intended to be finally and immutably settled and determined once for all and were beyond the reach of any future amendment.
The Constitution makers must have anticipated that in dealing With the socioeconomic problems which the legislatures may have to face from time to time, the concepts of public interest and other important considerations may change and expand, and so, it is legitimate to assume that the Constitution makers knew that Parliament should be competent to make amendments in those rights so as to meet the challenge of the problems which may arise.
The fundamental rights guaranteed by Part III could not have been intended to be eternal, inviolate and beyond the reach of article 368 for, even if the powers to amend the fundamental 'rights were not included in the Article, Parliament ran by a suitable amendment of the Article take those powers.
[951 F H; 954 F H; 955 E G] Article 226 which confers on High Court the power to issue writs falls under the proviso to article 368, while article 32 which is itself a guaranteed fundamental right and enables a citizen to move the Supreme Court to 935 issue writs, fall under the main part of the section.
Parliament may consider whether the anamoly which is apparent in the different modes prescribed by article 368 for amending articles 226 and 32 respectively, should not be remedied by including Part III itself in the proviso.
[956 E G] Sri Sankari Prasad Singh Deo vs Union of India and State of Bihar, ; , followed.
A. K. Gopalan vs State of Madras, ; and In re: The Delhi Laws Act; , , referred to.
(vi) It is not reasonable to suggest that, since the impugned Act amends only articles 31A and 31B and adds several Acts to the Ninth Schedule it does not amend the provisions of Part III but makes an independent provision, and so, comes within the scope of the proviso to article 368.
If Parliament thought that instead of adopting the cumbersome process of amending each relevant Article in Part III, it would be more appropriate to add articles 31A and 31B, then what Parliament did in 1951 has afforded a valid basis for further amendments in 1955 and in 1964.
[946 B E] (vii) The fact that the Acts have been included in the Ninth Schedule with a view to making them valid, does not mean that the Legislatures which passed the Acts have lost their competence to repeal or amend them.
Also, if a legislature amends any provision of any such Act, the amended provision would not receive the protection of article 3 1B and its validity will be liable to be examined on the merits.
[956 A C] Per Hidayatullah and Mudholkar JJ.
Quaere (i) Whether the word "law" in article 13(2) of the Constitution excludes an Act of Parliament amending the Constitution.
[959 E F; 968 G] (ii) Whether it is competent to Parliament to make any amendment at all to Part III of the Constitution.
[961 F G; 968 G] Per Mudholkar J. An amendment made by resort to the first part of article 368 could be struck down upon a ground such as taking away the jurisdiction of High Courts under article 226 or of the Supreme Court under article 136 or that the effect of the amendment is to curtail substantially, though indirectly, the jurisdiction of the High Courts under article 226 or the Supreme Court under article 136, and recourse had not been had to the proviso to article 368.
The question whether the amendment was a colorable exercise of power by Parliament may be relevant for consideration in the latter kind of case.
[969 D F] The attack on the Seventeenth Amendment Act was based on grounds most of which were the same as those urged and rejected in the earlier case of Sankari Prasad Singh Deo vs Union of India and State of Bihar, ; , and on some grounds which are unsubstantial.
No case has therefore been made out by the petitioners either for the reconsi deration of that decision or for striking down the Seventeenth Amendment.
[963 FG] The following matters however were not considered in Sankari Prasad 's case and merit consideration : (i) Where Legislation deals with the amendment of a provision of the Constitution, does it cease to be law within the meaning of article 13(2) merely because it has to be passed by a special majority ? [964 B C] (ii) Where a challenge is made before the Court on the ground that no amendment to the Constitution had in fact been made or on the ground that it was not a valid amendment, would it not be the duty of the Court and within its power to examine the question and to pronounce upon it since this is precisely what a Court is competent to do in regard to any other law? (iii) Is the statement in A. K. Gopalan vs State of Madras, ; that the fundamental rights are the minimum rights reserved by the people to themselves, and therefore unalterable, inconsistent with the statement in In re ; , that Parliament has plenary powers of legislation ? [965 D E] (iv) Whether making a change in the basic features of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution, and if it is the latter, would it be within the purview of article 368 ? [966 H, 967 A] (v) Upon the assumption that Parliament can amend Part III of the Constitution and was therefore competent to enact articles 31A and 31B, as also to amend the definition of "estate", can Parliament validate a State law dealing with land ? [968 H, 969 A] (vi) Could Parliament go to the extent it went when it enacted the First Amendment and the Ninth Schedule and now when it added 44 more agrarian laws to it ? Or, was Parliament incompetent to go, beyond enacting article 31A in 1950, and now, beyond amending the definition of "Estate" ? [969 B C]
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<s>[INST] Summarize the judgementCivil Appeal No. 142 of 1956.
Appeal by special leave from the judgment and order dated September 13, 1954, of the Labour Appellate Tribunal of India (Calcutta Bench) in Appeal No. Cal 87 of 1953.
H. N. Sanyal, Additional Solicitor General of India, J. B. Dadachanji, section N. Andley and Rameshwar Nath, for the appellants.
P. K. Chatterjee, for the respondents.
November 5.
The Judgment of the Court was delivered by BHAGWATI J.
This appeal with special leave arises out of an application made by the appellant to the Industrial Tribunal, Bihar under section 33 of the (hereinafter referred to as " 'the Act"), seeking permission to discharge the respondents from its employ.
873 The respondents were in the employ of the appellant and were staying in a two storeyed house in the city of Patna which had been rented by the appellant for housing its workmen.
On November 20, 1952, an occurrence took place in the said house wherein the respondents were involved.
Written reports of the said occurrence were sent on November 21, 1952, to the appellant 's Chief Engineer and the respondents were placed under suspension the same day.
An industrial dispute was then pending between the parties i.e., the appellant and its workmen before the Industrial Tribunal, Bihar, and the appellant therefore made an application to the said Tribunal under section 33 of the Act for permission to dismiss the respondents on the ground of misconduct as per cl.
17(b)(viii) of the appellant 's Standing Orders.
On November 27, 1952, the respondents also made an application before the said Tribunal under section 33A of the Act inter alia on the ground that their suspension by the appellant as aforesaid was a breach of section 33 of the Act.
On December 6, 1952, the appellant made an application before the said Tribunal stating that on a reconsideration of the facts of the case of the respondents the original prayer for permission to dismiss the the respondents was not being pressed, and for the ends of justice it would be sufficient if the appellant was granted permission to discharge the respondents under cl.
14(a) of the Standing Orders instead of the original prayer for dismissal under cl.
17(b)(viii) thereof.
This application was resisted by the respondents.
The Industrial Tribunal, however, entertained the same and after hearing the parties duly made its award on May 14, 1953, dismissing the respondents ' application under section 33A of the Act and granting the appellant permission to discharge the respondents from its employ with effect from the date of the order on payment to the respondents of one month 's pay in lieu of notice within 15 days therefrom.
The respondents carried an appeal against the said order of the Industrial Tribunal granting the appellant 's application under section 33 of the Act before the Labour Appellate Tribunal of India, Calcutta.
A 874 preliminary objection was taken on behalf of the appellant before the Labour Appellate Tribunal that no substantial question of law was involved and as such the appeal was not maintainable.
The Labour Appellate Tribunal was of the opinion that the appellant had alleged misconduct against the respondents and could not be allowed to adopt the expedient of terminating their services by giving notice for the requisite period or payment of salary in lieu of notice and that the Industrial Tribunal, therefore, ought not to have entertained the application for amendment of the prayer of the original application in which the appellant wanted to dismiss the respondents for misconduct.
This according to the Labour Appellate Tribunal was a substantial question of law and it therefore entertained the appeal.
The Labour Appellate Tribunal thereafter considered whether the appel lant had made out a case under cl.
17(b)(viii) of the Standing Orders and came to the conclusion that the respondents had not been guilty of any misconduct within the meaning of that clause and that therefore the order made by the Industrial Tribunal granting permission to the appellant to terminate the services of the respondents was liable to be set aside.
In so far, however, as after obtaining the permission from the Industrial Tribunal the appellant had given notice of discharge to the respondents, the Labour Appellate Tribunal expressed its inability to give the respondents any substantial relief either in the shape of reinstatement or compensation.
The appellant has come up in appeal before us against this order of the Labour Appellate Tribunal.
Shri H. N. Sanyal, appearing for the appellant, has urged in the fore front the contention that no appeal from the order of the Industrial Tribunal lay to the Labour Appellate Tribunal under section 7 of the Industrial Disputes (Appellate Tribunal) Act, 1950.
He contended that the said order was not a "decision" within the meaning of that expression in section 7 and even assuming that it was so, the appeal neither involved any substantial question of law nor was it a decision in respect of any of the matters specified in sub section (1)(b) 875 of that section.
The answer of Shri P. K. Chatterjee on behalf of the respondents was that the action of the appellant in the matter of the termination of the services of the respondents was punitive in character, that the discharge of the respondents for which permission was sought by the appellant was a punitive discharge, that such discharge was by reason of the alleged misconduct of the respondents falling within cl.
17(b)(viii) of the Standing Orders and not within cl.
14(a) thereof and that the substantial question of law which arose in the appeal was whether the appellant could be allowed to adopt the expedient of terminating the services of the respondents, without going through the procedure of submitting a charge sheet to the respondents and holding a proper enquiry in the matter of those charges, by merely giving notice for the requisite period or payment of salary in lieu of notice and thus resorting to el.
14(a) of the Standing Orders instead of cl.
17(b)(viii) of the same.
The other answer made by Shri P. K. Chatterjee was that having regard to the definition of the term "retrenchment" to be found in section 2(oo) of the Act the discharge of the respondents by the appellant really amounted to retrenchment and retrenchment being one of the matters specified in sub section
(1)(b) of section 7 of the Industrial Disputes (Appellate Tribunal) Act, 1950, the respondents had a right of appeal to the Labour Appellate Tribunal.
It is necessary, therefore, to appreciate what was sought to be done by the appellant when it made the application before the Industrial Tribunal on December 6, 1952.
This application has been described by the Labour Appellate Tribunal as an application for amendment of the original application which had been filed by the appellant on November 21, 1952, for permission to dismiss the respondents from its employ as per el.
17(b)(viii) of the Standing Orders.
It must be noted, however, that what the appellant purported to do by its application of December 6, 1952, was, in effect, to substitute another application asking for permission to discharge the respondents from its 111 876 employ under el.
14(a) of the Standing Orders, thus abandoning the relief which it had prayed for in the original application.
The application dated December 6, 1952, was thus, in substance, a new application made by the appellant to the Industrial Tribunal, no doubt relying upon the facts and circumstances which were set out in the original application but asking for the permission of the Industrial Tribunal to discharge the respondents from its employ under cl.
14(a) of the Standing Orders instead of dismissing them from its employ under el.
17(b)(viii) thereof.
We do not see how it was not competent to the Industrial Tribunal to allow the appellant to do so.
If the appellant bad been actuated by any oblique motives and wanted to evade the consequences of its not having held a proper enquiry, after submitting a charge sheet to the respondents one could have understood the criticism made by the Labour Appellate Tribunal in regard to the same.
The Industrial Tribunal, however, expressly recorded the finding that the application for leave to discharge the respondents from its employ was bona fide and what the appellant did by making the application dated December 6, 1952, was actuated by an honest motive of exercising its right to discharge the respondents under el.
14(a) of the Standing Orders instead of visiting upon the respondents the penalty of dismissing them from its employ under el.
17(b)(viii) thereof.
The discharge of the respondents was a discharge simpliciter in exercise of the rights of the employer under el.
14(a) of the Standing Orders and was not a punitive discharge under el.
17(b)(viii) thereof and if it was merely a discharge simpliciter, then, no objection could be taken to the same and the appellant would be well within its rights to do so, provided, however, that it was not arbitrary or apricious but was bona fide.
The only question relevant to be considered by the Industrial Tribunal would be that in taking the step which it did the appellant was not guilty of any unfair labour practice or victimization.
If the Industrial Tribunal did not come to a conclusion adverse to the appellant on these counts, it would have no jurisdiction to refuse, 877 'the permission asked for by the appellant.
Once the Industrial Tribunal was of opinion that the application dated December 6, 1952, and the discharge of the respondents for which .
the permission of the Industrial Tribunal was sought were in the honest exercise of the appellant 's rights, no question of law, much less a substantial question of law could arise in the appeal filed by the respondents against the decision of the Industrial Tribunal and the Labour Appellate Tribunal was clearly in error when it entertained the appeal.
In view of the above finding, we do not propose to deal with the contention that the order passed by the Industrial Tribunal under section 33 of the Act is not a "decision" within the meaning of that term in section 7 of the Industrial Disputes (Appellate Tribunal) Act, 1950.
The argument that the discharge of the respondents though patently it was a discharge simpliciter was, in substance, retrenchment within the meaning of the definition contained in section 2(oo) of the Act is equally untenable, for the simple reason that the term "retrenchment" was for the first time defined in the manner in which it has been done by an Ordinance promulgated in October 1953 which was followed by Act 43 of 1953 which was published in the Gazette of India on December 23, 1953.
The Industrial Tribunal made its order granting the permission under section 33 of the Act on May 14, 1953, so that, this definition of the term "retrenchment" could not apply to the facts of the present case.
If, therefore, at the relevant period the discharge simpliciter could not be deemed to be retrenchment of the respondents by the appellant, the decision of the Industrial Tribunal could not be said to be one in respect of any of the matters specified in sub section
(1)(b) of section 7 of the Industrial Disputes (Appellate Tribunal) Act, 1950.
In that view also no appeal could lie from the decision of the Industrial Tribunal to the Labour Appellate Tribunal.
It must be observed that neither of these two points was taken by the respondents either in the proceedings before the Industrial Tribunal or the Labour 878 Appellate Tribunal nor was either of them mentioned in the statement of case filed by the respondents in this Court.
They were taken for the first time in the arguments advanced before us by Shri P. K. Chatterjee.
We have, however, dealt with the same because we thought that we should not deprive tile respondents of the benefit of any argument which could possibly be advanced in their favour.
We are, therefore, of opinion that no appeal lay from the decision of the Industrial Tribunal to the Labour Appellate Tribunal, that the Labour Appellate Tribunal had no jurisdiction to interfere with the order made by the Industrial Tribunal granting the appellant permission to discharge the respondents under section 33 of the Act and that the decision of the Labour Appellate Tribunal is liable to be set aside.
We accordingly allow the appeal, set aside the decision of the Labour Appellate Tribunal and restore the order made by the Industrial Tribunal, Bihar, on date May 14, 1953.
The appellant will be entitled to its costs of this appeal from the respondents.
Appeal allowed.
[/INST]The petitioner, an advocate, filed the application by way of a public interest litigation alleging that the working of the Judges of the apex Court was cocktail, based on Western Common Law and American techniques; that the Court had become a constitutional liability without having control over the illegal acts of Government, and that the Court was sleeping over the issues.
Dismissing the writ petition, ^ HELD: The petitioner is prima facie guilty of contempt.
The petition is clearly intended to denigrate the Court in.
the esteem of the people of India.
The allegations are clumsy.
It is an intentional attempt at lowering the prestige of the Court as the apex Judicial Institution.
[442G, D; 443A] The Registry to draw up an appropriate proceeding for contempt of court and issue notice to the petitioner.
[443C] The petition is an act against public interest.
The petitioner has certainly overstepped the limit of self restraint so much necessary in such litigation.
The Registry directed not to entertain any public interest litigation application filed by the petitioner in future.
[443E]
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<s>[INST] Summarize the judgementAppeals Nos. 321 and 322 of 1956.
Appeals by special leave from the judgment and decree dated September 21.
1951, of the Mysore High Court in Regular Appeals Nos.
3,24,13 and 25 of 1948.
49, arising gut of the judgment and decree dated 85 664 January 9, 1948, of the Principal DistriCt Judge, Bangalore, in Original Suits Nos.
55 of 1946 47 and 117 of 1945 46 respectively.
section K. Venkataranga Aiyangar and section K. Aiyangar, for the appellant.
B. K. B. Naidu, for the respondents.
February 1.
The Judgment of the Court was delivered by SHAH, J.
V. R. Subramanyam, the appellant herein is the owner of plot No. 29, Subedar Chattram Road in the town of Bangalore.
B. Thayappa respondent is a building contractor.
The appellant entrusted the respondent with the work of constructing a house and shops on the plot, on terms and conditions set out in a written agreement dated October 1, 1942, which was slightly modified on October 6, 1942.
By the agreement the respondent was to construct for the appellant on the plot six shops abutting a public road, the main building at the rear of the shops, an out house and a garage according to a site plan.
The respondent was to be remunerated at rates specified in the agreement: for constructions with R. C. C. roofing, the rate stipulated was Rs. 4 2 0 per square foot and for " tiled construction " it was Rs. 3 2 0 per square foot.
The Municipality of Bangalore did not sanction the plan as proposed by the appellant.
The plan was altered and it was sanctioned, subject to those alterations.
By the alterations the shops were deleted from the plan, the area of the out house was increased, and a puja room on the ground floor and an extra room on the first floor were added to the plan.
A compound wall was also to be constructed.
The respondent carried out a substantial part of the construction work according to plan and the appellant paid to him diverse sums of money and delivered building materials.
The aggregate amount accordingly received by the respondent was Rs. 20,200.
But before the work could be completed disputes arose between the appellant and the respondent about the work done by the latter.
The appellant claimed that the work done was defective and that he was entitled to compensation for effecting 665 repairs necessary to rectify the defects.
The respondent claimed compensation at certain rates set up by him for work done for the appellant for which no express provision was made in the written agreement.
Each party set up an oral agreement about the remuneration to be paid to the respondent for the extra work which was not included in the original agreement.
The appellant filed a suit in the court of the Subordinate Judge, Bangalore, against the respondent which was later transferred to the court of the Principal District Judge, Bangalore, and numbered O. section 54 of 1946 47, for a decree for Rs. 8,515 4 0 being the amount of compensation which the appellant claimed he was entitled to receive from the respondent for defective work and for delay in completion of the construction.
The respondent filed a suit against the appellant which was later transferred to the Court of the Principal District Judge, Bangalore, and numbered 55 of 1946 47.
By this suit, the respondent claimed a decree for Rs. 5,988 12 0 being the remuneration due to him for the work done in constructing the house less Rs. 20,200 received from the appellant.
The respondent filed another suit No. 117 of 1945 46 for a decree for Rs. 15,001 10 9 with interest and notice charges being the amount due to him for the construction of the out house, godown, first floor room and flight of steps and the value of some building materials which the respondent claimed he had left in the premises of the appellant and which the latter had wrongfully removed.
The trial court granted to the appellant a decree for Rs. 3,000 in suit No. 54 of 1946 47.
To the respondent, he granted a decree for Rs. 2,989 6 0 in suit No. 55 of 1946 47 and in suit No. 117 of 1945 46, he granted a decree for Rs. 13,329 10 9.
Both the parties felt themselves aggrieved by the decrees passed in the three suits and six appeals were preferred to the High Court of Judicature of Mysore at Bangalore against those decrees.
The High Court reversed the decree passed in suit No. 54 of 1946 47 and dismissed the appellant 's claim in its entirety.
The decrees 666 passed in suit Nos.
55 of 1946 47 and 117 of 1945 46 were also set aside and proceedings were remanded to the District Court with a direction that a qualified engineer be appointed as Commissioner to determine the amounts payable to the respondent for work done in addition to the work agreed to be done under the written contract.
The High Court ordered that the same be determined " in accordance with the directions " given in the judgment.
The appellant has appealed to this court against the decrees in suits Nos.
55 of 1946 47 and 117 of 1945 46 with special leave under article 136 of the Constitution and he challenges the directions given in the order of remand.
The dispute between the parties related to the construction of the out house, garage, puja room, the room on the first floor, the stair case 'leading to the upper floor room and the compound wall.
In respect of these constructions (except for the compound wall) the District Judge awarded compensation to the respondents at the rate of Rs. 4 2 0 per square foot and in respect of the compound wall he awarded compensation at the rate of Rs. 5 per running foot, and certain additional charges.
The High Court held that the respondent was entitled to receive compensation at the prevailing market rate for constructions which were not covered by the agreements dated October 1, 1942 and October 6, 1942.
The High Court negatived the plea of the respondent that the appellant had agreed to pay him at " extra rates for deviations and additions not specifically contained in the original agreement.
" The High Court then held that for the construction of the out house,puja room and the upper floor room, the respondent was entitled to receive compensation at the rate of Rs. 4 2 0 and for the out house he was entitled to receive " some extra amount for the additional constructions. " In these items, according to the High Court, there was no material deviation from the original plan.
The High Court further directed that for the flight of stairs compensation be paid either "by way of a lump sum or on cubical content whichever was more practicable or common according to the rates which they proposed to indicate for such 667 additional work. " The High Court however held that there was substantial variation from the original contract in the construction of the garage, and therefore the garage could " not be covered by the contracted rate" and must be paid for at the rates current at the end of the year 1943.
The High Court also directed that " if the extra items not covered by Exs.
VII and VII(a) have been constructed or supplied by the defendants as claimed in his bills Exs.
XXI, XXII and XXIII are to be paid for in addition to the flat rate, the basis on which they should be paid for may. . be fixed in accordance with the rates contained in exhibit II.
" Counsel for the appellant submitted that as in the view of the High Court the respondent failed to prove the oral agreement pleaded by him, the suit should have been dismissed, and they should not have awarded compensation quantum meruit which was not claimed.
it was urged that the respondent must succeed or fail ' on the case pleaded by him, and not on a cause of action not pleaded.
In our view, there is no substance in this contention.
As we have already observed, in respect of the additional work done by the respondent, both the parties set up conflicting oral agreements.
These were not accepted by the High Court.
If a party to a contract has rendered service to the other not intending to do so gratuitously and the other person has obtained some benefit, the former is entitled :to compensation for the value of the services rendered by him ' Evidently, the respondent made additional constructions to the building and they were not done gratuitously.
He was therefore entitled to receive compensation for the work done which was not covered by the agreement.
The respondent claimed under an oral agreement compensation at prevailing market rates for work done by him: even if he failed to prove an express agreement in that behalf, the court may still award him compensation under section 70 of the Contract Act.
By awarding a decree for compensation under the Statute and not under the oral contract pleaded, there was in the circumstances of this case no 668 substantial departure from the claim made by the respondent.
It was then urged that the High Court was in error in directing assessment of compensation for the additional work " in accordance with the rates mentioned in exhibit II.
" The plaintiff 's witness T. section Narayana Rao had admitted that the rates in exhibit II were the current market rates for building construction work similar to the appellant 's building.
In the view of the High Court, the rates set out in that bill were not excessive.
If with a view to restrict the scope of the enquiry, the learned judges of the High Court gave a direction to the Commissioner for assessing compensation on the basis of rates which were approved by the plaintiff 's witness, it cannot be said that any serious error was committed in incorporating that direction which would justify our interference.
Finally it was urged that the appellant was entitled to claim the loss suffered by him on account of defective work by way of an equitable set off in the claim made by the respondent in suits Nos.
55 of 1946 47 and 117 of 1945 46.
But the appellant made a claim in a substantive suit for compensation for loss suffered by him because of the alleged defective work done by the respondent.
That suit was dismissed by the High Court and it is not open to the appellant thereafter to seek to reagitate the same question in the companion suits when no appeal has been preferred against the decree in suit No. 54 of 1946 47. and no plea of equitable set off has been raised in the written statements in the companion suits.
In our view, there is no substance in any of the contentions raised.
The appeals therefore fail and are dismissed with costs.
One hearing fee.
Appeals dismissed.
[/INST]The appellant was the Mahant of the Asthal Estate in Bihar which was in the management of a Receiver appointed by the Civil Court in a suit relating to the estate.
On appeal the question that arose for decision in this Court was whether the appellant Mahant was liable to be assessed under the Bihar Agricultural Income tax Act, 1948, to pay agricultural income tax for the year in which the estate was in the management of the Court Receiver.
Held, that the income though collected by the Receiver was the income of the appellant.
By virtue of the provisions of sections 2, cl.
(m) and 13 of the Bihar Agricultural Income tax Act it was open to the taxing authorities to treat the Receiver as the assessee because he held the property from which income was derived, but on that account the income in the hand of the owner was not exempt from liability to assessment of tax.
Section 3 of the Act provides for charging agricultural income of every person " as defined in section 2, cl.
(m) which includes a receiver and section E3 merely provides a machinery for recovery of tax from "Persons" including receivers and is not by itself a charging section.
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<s>[INST] Summarize the judgementCriminal Appeal No. 208 of 1978.
From the Judgment and Order dated 23.12.
1977 of the Punjab and Haryana High Court in Criminal Appeal No. 259 of 1974 M.R. Sharma, C.M. Sharma and H.K. Puri for the Appellant.
117 Harbans Lal, I.S. Goel and C.V. Subba Rao for the Respond ent.
The Judgment of the Court was delivered by OZA, J.
This appeal has been filed by the appellant after the grant of special leave by this Court against his conviction under Sec.
5(2) of the Prevention of Corruption Act and sentence to rigorous imprisonment for 2 years and fine of Rs. 150 and also under Sec.
161 of the Indian Penal Code and rigorous imprisonment for one year and a fine of Rs. 100 awarded by Special Judge, Ambala and maintained by the High Court of Punjab & Haryana by its judgment dated 23.12.
According to the prosecution Shri M.G. Devasahayam P.W.4 Sub Divisional Officer , Jagadhri had sent a complaint against the appellant to the Station House Officer, Jagadhri on 7.6.1972 on the basis of which the first information report was recorded at Police Station about 4 P.M. on 7.6.1972.
The Sub Divisional Officer has received an appli cation from one Gian Singh complainant about the conduct of the appellant.
It was alleged by Gian Singh P.W.2 in the complaint that the appellant who was a Patwari of Bambhol Circle, had been demanding money for supply of copies from the revenue record and Gian Singh needed those copies in connection with the execution of a sale deed.
Gian Singh was to purchase land form Brij Bhushan who was to act as an Attorney for his mother.
It was alleged that for this Rs.200 were settled out of which Rs.50 were paid and Rs. 150 were to be paid on the date of the sale deed.
The copies of the documents required were obtained after Rs.50 were paid.
The sale deed was to be executed on 7.6.72 and therefore on this date (Gian Singh and Brij Bhushan approached the Sub Divi sional Officer with an application making these allegations against the appellant.
The Sub Divisional Officer attempted to contact the Deputy Superintendent of Police and the Sub Inspector of Police incharge of the Police Station con cerned, but when none of them were available he himself decided to lay a trap.
It is alleged that Gian Singh P.W.2, Brij Bhushan P.W.3, Raj Kumar and Mangal Singh P.W. 1 had gone to the house of the Sub Divisional Officer at 2.40 P.M. on 7.6.1972.
Gian Singh narrated the whole story and stated that he had promised to pay he appellant Rs. 150 on the date on which the sale deed was to be executed.
Rs. 150 were produced by Gian Singh which included a 100 rupee note and 5 notes of Rs. 10 each.
Their number were noted and the Sub Divisional Officer initialled the currency notes and were given to Gian Singh and a trap was laid.
Brij Bhushan was asked to act as a witness.
Gian Singh 118 and Brij Bhushan therefore reached the canteen near the Tehsil.
The Sub Divisional Officer, Raj Kumar and Mungal Singh went to Tensil premises in a Jeep and waited near the tea stall for a signal.
On receiving the signal they reached there and on personal search currency notes of Rs. 150 were recovered from the person of the appellant.
On these facts the appellant was prosecuted and was convicted and sentenced as mentioned above.
The facts are not disputed.
The money has been recovered from the possession of the appellant and it is also not disputed that he received this money from Gian Singh.
Even before the High Court these facts were not disputed.
The plea taken by the appellant was that the Govt.
wanted to collect money from the land holders for small savings schemes and the Patwaris were instructed to collect this amount.
Appellant also examined some defence to indi cate that such circulars were issued to the Patwaris and they were collecting the amounts to be deposited in the small savings schemes and on this basis they received appre ciation and those who could not collect sufficient amount to meet the target also received remarks.
It was contended before the High Court and also before this Court that this amount the appellant had received as a deposit for the small savings scheme and which was ultimately recovered by the Sub Divisional Officer.
It was also contended that in fact the copies of the revenue record which were needed by Gian Singh had already been supplied to him and in fact the sale deed was registered on 7th June before this trap and there fore it was alleged that Rs. 150 were paid as alleged by appellant and it was on this basis contended that the expla nation given by the appellant that he had received the money to be deposited under the small savings scheme appear to be reasonable.
It is significant that when the Sub Divisional Officer on getting the signal reached the canteen alongwith the witnesses and conducted the search it was not the stand of the appellant that he had received the money for small scale deposits as it is apparent that if the money was received for that purpose, as soon as the Sub Divisional Officer reached the canteen with the witnesses and wanted to search the appellant, appellant would have immediately came out with this explanation.
Learned counsel for the appellant frankly conceded that this was not the case of the appellant that he came out with this explanation on the spot at that time.
This is not his case even in the statement recorded at the trial nor such a suggestion was put to anyone of the prosecution witnesses in the course of cross examination.
In view of this it could not be disputed that this explanation has been given as an after thought and this itself goes to show that this explanation is just as an imagination.
119 There appears to be some controversy about the fact as to whether the Patwaris were directed to collect funds for small savings schemes and in this respect the learned Trial Court also examined the Tehsildar as a Court witness and after considering all the evidence disregarded the explana tion given by the appellant in respect of the money (Rs. 150) recovered from his person.
The learned Trial Court after considering the defence evidence and the evidence of the Tehsildar did not accept the defence version and convicted the appellant.
The Trial Court also considered the evidence of P.W .5
Jeet Ram who was the keeper of the tea stall who was examined by the prosecution but he turned 'hostile ' and supported the de fence version.
Learned counsel for the appellant went through the evidence in detail and attempted to contend that as the copies of the documents had already been received there was no occasion for Gian Singh to pay Rs.150.
According to the prosecution the bargain was settled for Rs.200.
Rs.50 were paid in advance and therefore copies were given but the appellant was to receive the balance of Rs. 150 for which Gian Singh had promised to pay it on the date of the regis tration and accordingly on the date of registration it was fixed up that the appellant will be available at the tea stall near the Tehsil where this amount will be paid and it was because of this that Gian Singh appreached the Sub Divisional Officer with the complaint.
In fact where the receipt of the amount and its recovery is not disputed it is not necessary for us to go through the evidence and examine it afresh, although learned counsel went through the evi dence in detail.
The only question is as to whether the Courts below were fight in rejecting the explanation of the appellant for receipt of Rs. 150.
The explanation given by the appellant which was seriously pressed by the learned counsel for the appellant was that he had received this amount to be deposited in the small savings scheme on behalf of Gian Singh but it is significant that neither he had made any note of this fact nor given any receipt to Gain Singh.
Apart from it it is significant that the Sub Divisional Officer who was a revenue officer and the appellant being a Patwari was his subordinate.
The normal conduct of the appellant would have been to tell him as soon as he arrived for search that in fact he had received this amount to be deposited in the small savings scheme.
It is impossible to believe that if the appellant had received this amount for being deposited in the small savings scheme he would have not opened his mouth and permitted the search and recovery of this amount from his pocket to be done by the Sub Divisional Officer and allowed the matter to be 120 handed over to the Police and still would not have come out to say what he chose to say at the trial.
This conduct of the appellant in not coming out with this explanation in stantaneously goes a long way to make this explanation just an after thought specially when Sub Divisional Officer con ducted the search and recovered this amount from his person.
In this view of the matter therefore in our opinion both the Courts below were fight in discarding this explanation of the appellant.
We therefore see no substance in this conten tion advanced on behalf of the appellant.
Learned counsel ultimately contended that this appellant a Patwari who had faced the trial and pendency of this appeal for about 14 years will now have to go to jail for serving out a part of this sentence which remained to be served.
It is no doubt true that having been convicted for these offences the appellant is bound to lose his service.
It was also stated that he had served out some sentence of the imprisonment also.
The incident is of 1972 and we are now in 1987.
In view of these circumstances in our opinion the sentence of the imprisonment already undergone and sentence of find imposed by Hon 'ble the Trial Court will meet the ends of justice.
Consequently appeal is partly allowed.
The conviction of the appellant under Sec.5(2) of the Prevention of Corruption Act and Sec.
161 of the Indian Penal Code is maintained.
However his sentence as regards sentence of imprisonment is reduced to the sentence already undergone but the sentence of fine is maintained.
He is on bail.
His bail bond shall be cancelled if he had not paid the amount of fine he shall do so within one month from today.
A.P.J. Appeal al lowed.
[/INST]A show cause notice dated 29.1.1976 issued by the re spondent to the appellant calling upon him to explain as to why excise duty treating his product as "fabric" and not as "yarn" may not be levied, was challenged in the High Court of Karnataka in Writ Petition No. 2632/ 1976.
Pending final disposal of the writ petition, an interim order staying the collection of excise duty as a "fabric" for the period 1.4.1975 to 18.8.75 alone was passed with a specific direc tion that the appellant should continue to pay excise duty as "yarn".
Finally the writ petition was dismissed on 16.2.1981.
On 20th May, 1982, another notice No. 913 to show cause was issued to the appellant simultaneously seeking to raise a demand for the period from 20.6.1976 to 28.2.1981 apart from for the period between 1.4.1975 to 18.8.1975 challenged in the earlier writ petition.
The Karnataka High Court having rejected the plea of bar of limitation under section 11A of the raised in the writ petition challenging the said second show cause notice and demand, the appellant has come in appeal by way of special leave.
Allowing the appeal, the Court, HELD: 1.1 Section 3 of the Act which contains the charg ing provision clearly shows that levy and collection are two distinct and separate steps.
[312H] 1.2 The provision of section 11A(1) and (2) of the make it clear that the statutory scheme is that in the situations covered by the sub section(1), a notice of show cause has to be issued and sub section(2) requires that the cause shown by way of representation has to be considered by the prescribed au thority and then 310 only the amount has to be determined.
The scheme is in consonance with the rules of natural justice.
An opportunity to be heard is intended to be afforded to the person who is likely to be prejudiced when the order is made, before making the order thereof.
Notice is thus a condition prece dent to a demand under sub section(2).
In the instant case, compliance with this statutory requirement has not been made, and, therefore, the demand is In contravention of the statutory provision.
[313E G] 2.
Explanation to section 11A of the , which incorporates a well known principle of law, in clear terms refers to 'stay of service of notice '.
The High Court order did not at all refer to service of notice.
The High Court having directed stay of collection of duty as 'fabric ' has not issued any interim direction in the matter of issue of notice of levy of the duty.
Therefore, the benefit of Explanation to section 11A of the Act is not available to the Respondent.
[313C D] Sirajul Haq Khan & Ors.
vs The Sunni Central Board of Waqf, U.P. & Ors.
, ; and N.B. San jane As sistant Collector of Central Excise, Bombay & Ors.
vs El phinstone Spinning & Weaving Mills Co. Ltd., ; , 514 referred to.
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<s>[INST] Summarize the judgementition (Criminal) No. 148 of 1983.
(Under article 32 of the Constitution of India) C.S. Vaidyanathan and Ms. Nandita Haksar for the Petitioner.
K.G. Bhagat, Addl.
Solicitter General, P.P. Singh and Ms. A. Subhashini for the Respondent.
V.C. Mahajan, Balbir Singh Shant, S.K. Mehta and Mrs. Urmila Kapur for the State of Manipur.
The Judgment of the Court was delivered by DESAI, J.
Petitioner is a student of Political Science studying in Jawaharlal Nehru University at Delhi.
He belongs to Naga community and hils from Manipur.
He has moved this petition under article 32 of the Constitution praying for a writ of habeas corpus calling upon the respondents Union of India, State of Manipur and Commandant, 21st Sikh Regiment to produce before this Court Shri C. Daniel, a former Naik Subedar attached to Manipur Rifles and at the relevant time Head Master of Junior High School, Huining, 907 Ukhrul East District Manipur State and Shri C. Paul Assistant Pastor, attached to the Baptist Church in Huining village who according to the petitioner were whisked away on March 10, 1982 from Huining village to Phungrei Camp and detained by the officer incharge of 21st Sikh Regiment and are held incommunicado, not released till today nor their whereabouts are made known.
Petitioner averred that 21st Sikh Regiment has set up a camp at Phungrei.
Some jawans attached to this regiment visited Huining village on March 5, 1982 rounded up villagers and detained them in the playground and the women folk and children were confined in the S.D.A. Church Building.
Most of villagers were released on March 6, 1982 around 10.30 a.m. Three students K. Nelson, H.R. Aaron and K. Paul studying in Petigrew College were arrested and taken away.
The jawans resorted to firing which resulted in the death of one Luinam.
It was only at about 11.00 p.m. on March 6, 1982 when the Major and Captain of the 21st Sikh Regiment were presented with some shawls that the captives were released.
On March 7, 1982 one Mr. Joshi, Deputy Commissioner, East Ukhrul accompanied by Additional District Magistrate visited Huining village to enquire about the incidents of the previous day.
The army, jawans, who were present in the village, produced before the aforementioned officers certificates of villagers exonerating them of allegation of ill treatment and praising the conduct of jawans, which according to the petitioner were obtained under duress from the local residents.
On March 7, 1982, the Sunday service by Sri C. Paul, Assistant Pastor and C. Daniel, Head Master in the Church was disturbed by one Subedar and 4 jawans who proceeded to collect some signatures under duress from those who had assembled to participate in the Church service.
The certificates were ostensibly obtained to show that the army officers and jawans had not treated the villagers with force or cruelty and nothing untoward had happened on the previous two days.
On March 10, 1982, C. Daniel and C. Paul were arrested by the army jawans and were taken away from the village.
At the same time, some signatures were obtained by the jawans on blank papers from Machihan, village headman, and from one Shangnam a member of the village authority.
On the next day, Machihan village headman, reported the fact of arrest of C. Daniel and C. Paul to the Deputy Commissioner, East Ukhrul Shri Joshi.
As C. Daniel and C. Paul did not return to the village till March 15, 1982, Mrs. C. Thingkhuila, wife of Shri C. Daniel and Mrs. Vangamla, wife of Shri C. Paul went to Phungrei camp in search of their respective 908 husband and when they were waiting there, they saw C. Daniel and C. Paul being led away by 4 army jawans towards the west.
In the meantime, on a complaint made by Machihan, Shri Joshi, Deputy Commissioner directed Superintendent of Police to make enquiries about the absence of C. Daniel and C. Paul from March 10, 1982.
A radiogram message was sent on March 15, 1982 to the Superintendent of Police (East) Ukhrul requesting him to enquire about and ascertain the whereabouts of (1) Roshing (2) C. Daniel and (3) C. Paul, all of Huining village and four others.
The direction given to the Superintendent of Police was to find out the whereabouts of the persons named in the radiogram and to submit his report at an early date.
Accordingly, the Superintendent of Police submitted his report on March 27, 1982 stating therein that three persons of Phungcham village mentioned in the radiogram have been released by Assam Rifles on March 19, 1982.
The report further recites as under: "As regards persons belonging to Huining village it is learnt that K. Roshing is still under interrogation with Army and whereabouts of other persons are not known.
They were released one day after arrest by Army as reported.
" On March 29, 1982, 5 residents of Huining village including Machihan, village headman, submitted a written complaint to the Deputy Commissioner, Manipur East District, Ukhrul setting out therein the circumstances in which on March 10, 1982 C. Daniel and C. Paul were taken away by the army jawans.
They also complained how the village people were forced to put their signatures on blank paper.
They further complained that they have not issued any certificate showing that C. Daniel and C. Paul were released in their presence on March 11, 1982.
On March 30, 1982, the Deputy Commissioner in response to the query from the Chief Secretary, Manipur State, reported that the village headman and other village authority members of Huining have given a report in writing that it is not correct that C. Daniel and C. Paul were released in presence of village authority members and that both of them were still missing.
It is further stated that the village headman and other members of the village authority have reported that they had not issued any certificate as claimed by the army authority that C. Daniel and C. Paul were released by the army authority on March 11, 1982 in their presence.
The report further recites that a complaint has been made that the security forces personnel had 909 obtained signature on blank papers from village people during their combing operation in Huining village on March 10, 1982.
Petitioner further averred that after C. Daniel and C. Paul were taken away by army jawans of 21st Sikh Regiment on March 10, 1982 around 3.00 p.m. from Huining village, they have not been released by the officers and jawans incharge of 21st Sikh Regiment and they are illegally and unauthorisedly detained and they are held incommunicado.
It is alleged that this continuous detention by the officers and jawans of the army is illegal, invalid and contrary to article 21 and that all attempts to secure the knowledge as to how the officers and jawans of 21st Sikh Regiment have dealt with the aforementioned two persons have not met with success and he has no other option but to file this petition for a writ of habeas corpus.
Photostat copies of the affidavits of Mrs. C. Thingkhuila, wife of Shri C. Daniel, Mrs. C. Vangamla, wife of Shri C. Paul and C. Shangnam, originals of which were produced in earlier writ petitions were annexed to the present writ petition.
The petitioner also annexed original affidavit of Shri H. L. Machihan, village headman and Shri C. Sangnam, village authority member to the petition.
The petitioner impleaded four respondents being (1) Union of India through the Secretary, Ministry of Defence, (2) Union of India through the Secretary, Ministry of Home Affairs, (3) State of Manipur through the Chief Secretary and (4) Commandant, 21st Sikh Regiment, Phungrei Camp, Ukhrul.
On February 9, 1983, the Court directed notice to be served upon the respondents.
In response to the notice, one J. C. Sachdeva, Under Secretary, Ministry of Defence, Govt.
of India, New Delhi filed the first return.
He claimed his source of knowledge about the facts stated in the affidavit as being personal, being conversant with the facts but remained conspicuously silent about his access to any record on the strength of which he filed his affidavit save making a vague statement in the last para of his affidavit, "that the factual statements made above, are based on the reports and information received which I believe to be correct.
" In his affidavit, he referred to three other writ petitions being W.P. No. 550 of 1982, W.Ps.
9229 30 of 1982 and W.P. No. 5328 of 1980 in which constitutional validity of Assam 910 Disturbed Areas (Special Power of Armed Forces) Ordinance, 1947 and Armed Forces (Special Powers) Regulations, 1958 was questioned.
He proceeded to reproduce some of the paragraphs from the counter affidavit filed in earlier petitions.
Dealing with the petition for habeas corpus, it was admitted that on March 6, 1982 jawans of 21st Sikh Regiment carried out the search in Huining village lasting for a period of 3 to 4 hours and admitted that certain certificates were obtained by the army personnel from village authorities, Pastors etc.
contradicting the allegations made in the writ petition.
Copies of those certificates were annexed to the return filed in W.P. No. 550 of 1982.
Concerning C. Daniel and C. Paul, it was reiterated that both of them were called for the purpose of identification of certain suspects on March 10, 1982 and after spending the night at the army camp they were allowed to go on March 11, 1982 and since then the security forces have no knowledge about their whereabouts.
Proceeding further it was admitted that a Deputy Commissioner of Ukhrul (presumably Mr. J.P. Joshi) did visit village Huining on March 7, 1982.
It was denied that Mrs. Thingkhuila and Mrs. Vangamla ever visited the army post on March 15, 1982.
It was admitted that in response to an appeal made to the Chief Minister regarding C. Daniel and C. Paul not having returned to their village, the Security Forces alongwith a police constable (presumably Yangya Anei Thangkhul also known as Maluganai Tankhul) did visit village Huining on May 8, 1982 in order to inform the wives of C. Daniel and C. Paul that they had left the Army Camp on March 11, 1982.
It was denied that at the time of this visit signatures from the village headman or members of the village authority or from other inhabitants of the village were obtained on blank papers There was a perfunctory deniel about the affidavits annexed to the present writ petition.
A request was made that either the writ petition may be disposed of relying upon the statements made in the affidavit of Shri Sachdeva or that the present writ petition be tagged on with the earlier writ petitions.
The petitioner filed a rejoinder affidavit in which inter alia it was stated that the earlier writ petitions were not specifically concerned with the mysterious disappearance of Shri C. Daniel and Shri C. Paul after they were taken away by the army personnel but they were primarily concerned with the constitutional validity of the aforementioned Armed Forces (Special Powers) Act, 1958.
It was further stated that the Court should direct the respondents to produce the 911 report of enquiry made by the Superintendent of Police, Ukhrul to the Deputy Commissioner and the connected documents.
After hearing both the parties, rule nisi was issued.
In response to the rule, again Shri J.C. Sachdeva filed a return maintaining an eloquent silence with the regard to the source of knowledge about the various factual statement made by him in the affidavit save and except repeating the same vague statement with slight modification that "the statements made above are correct to the best of my knowledge as from the records of the case.
" The change in the tune is deliberate as will be presently mentioned.
This return is almost a carbon copy of the earlier return omitting the extracted statements from the still earlier affidavit.
It was specifically stated that C. Daniel and C. Paul were respectable persons who were asked to go to the Army Camp on March 10, 1982 to identify some suspects (names not mentioned) and that after the identification they were permitted to leave.
It was stated that after they work of identification was over C. Daniel and C. Paul were permitted to leave the Army Camp but as it was evening time and it was dangerous to travel at night on account of fear of the insurgents, both of them preferred to spend the night at the Army Camp which the Camp Commandant permitted and they left in the morning of March 11, 1982.
It was further stated that since the suspects belonging to the insurgents group are mixed up with the local population, it is not easy to identify them or apprehend them unless there is information or identification through loyal and respectable citizens of the country.
It was further stated that C. Daniel and C. Paul were not suspects or accused in any of the cases initiated by the Security Forces and that they were never arrested or apprehended by the Security Forces.
With regard to the request for production of the reports of the Superintendent of Police and Deputy Commissioner, it was stated that they were produced on an earlier occasion in another Writ Petition in the Court.
But a privilege was claimed by the Government of Manipur on the ground that the nature of the contents of the said document did not permit the production of the same being against public interest.
The matter was then set down for hearing on May 5, 1983.
Mr. P.P. Singh appeared for the Union of India.
The first enquiry the Court made was about the source of knowledge of Mr. Sachdeva with special reference to reports and information received at Delhi and the record of the case.
Mr. Singh was called upon to disclose 912 the records if any, on the basis of which factual averments were made in the affidavit.
It was pointed out to him that Mr. Sachdeva is a Delhi based officer and either he must explain his source of knowledge or if he has relied on any record the same may be produced before the Court, on the pain of both the returns being rejected as utterly unreliable.
In response to the query of this Court surprisingly, Mr. P.P. Singh, learned counsel for the Union of India stated that the Union of India is not in possession of any record which may shed light about how C. Daniel and C. Paul were dealt with after admittedly they were taken to the Army Camp on March 10, 1982 and spent the night between 10th and 11th March, 1982 at the Army Camp.
The credibility and authenticity of documents produced at a later stage have to be adjudged and evaluated in the back drop of the earlier statements in the affidavit of Mr. Sachdeva and the statement of Mr. P.P. Singh.
At the request of Mr. Singh, the matter was then again adjourned.
Things moved faster thereafter.
The stand earlier taken became very inconvenient when presumably the position adopted by the Court forced the respondents to disclose some documents and therefore Sachdeva had to be replaced and another officer was selected to file one more affidavit.
On behalf of Union of India, Shri H.S. Pruthi, another Under Secretary in the Ministry of Defence filed an affidavit disclosing the source of his knowledge the records of the case and copies of original documents with the Union of India.
This is a complete summersault.
To this affidavit were annexed telex communications between 59 Mountain Brigade and 21st Sikh Regiment, Annexures A/1 & A/2 dated August 25, 1982 and August 26, 1982 respectively; Annexure A/3 being a communication from 59th Mountain Brigade to 8 Mountain Division dated August 28, 1982; Annexures B/1 and B/2 being extracts from the registers maintained by the 21st Sikh Regiment at Phungrei Camp; Annexure C/1 being an affidavit of Shri Lt. Col. N.D. Garg, Commanding Officer of 21st Battalion, Sikh Regiment; Annexure C/2 being an affidavit of Major Joginder Singh Lamba attached at 21st Battalion of the Sikh Regiment; Annexure C/3 being an affidavit of Subedar Joginder Singh also attached to the same battalion, Annexure C/4 being an affidavit of Naik Gurdip Singh; Annexure C/5 being affidavit of Naik Gurcharan Singh; Annexure C/6 being an affidavit of Naik Bachan Singh who was on Sunday duty at the entrance gate of the 21st Battalion between 12.00 hours to 18.00 hours on March 10, 1982; Annexure C/7 being an affidavit of Subedar Sucha Singh 913 who was Subedar Adjutant of 21st Battalion at the relevant time; and Annexure C/8 being an affidavit of Havildar Kultar Singh who stated amongst others that on March 11, 1982, two persons Shri Machihan Shri Shangham came to the gate where he was on duty and they enquired about C. Daniel and C. Paul whereupon after obtaining permission from Adjutant he and Shri Subedar Sucha Singh brought C. Daniel and C. Paul at the gate and they left in company of Shri Machihan and Shri Shangham.
At a later date, Mr. V.C. Mahajan, learned counsel appeared for the State of Manipur and filed a return on behalf of the State of Manipur.
One Shri E. Kunjeswar Singh, Secretary (Home), Govt.
of Manipur swore the affidavit on behalf of the State of Manipur.
The affidavit was limited in character being a response to the request made by the learned counsel for the petitioner to produce: (i) Report of the Superintendent of Police; (ii) Report of the Deputy Commissioner; and (iii) Statement of Yangya Anei Tankhul @ Malugnai Tangkhul.
It was stated that with regard to the events of March 10, 1982, the Deputy Commissioner (East) Ukhrul on receipt of the information (not in writing) on March 11, 1982 sent a wireless message to the Superintendent of Police (East) Ukhrul on March 15, 1982, a copy of which was annexed as R 3/A.
It was further stated that on receipt of the wireless message, the Superintendent of Police conducted an enquiry and sent his report to the Deputy Commissioner on March 27, 1982 (Annexure R 3/B).
The Deputy Commissioner in turn sent a report on March 30, 1982 to the Government (Annexure R 3/C).
It was further stated that with regard to the incident on March 10, 1982, the Deputy Commissioner received a written complaint for the first time on March 29, 1982 (Annexure R 3/D).
With regard to the reports dated April 28, 1982 and May 31, 1982, privilege was claimed under Sec. 123 of the Evidence Act on the ground that the production of the report in Court and being made available to the petitioner will be against public interest.
It was further stated that in the records with the State Government there is no statement of Police Constable Vangya Anei Tangkhul @ Maluganai Tangkhul of a date prior to the filing of the present writ petition and a notice was ordered to be issued.
As a clarificatory effort, after receipt of notice, an attempt was made by the State to ascertain the fact from the concerned constable by recording his statement, a copy of which was produced at R 3/F 1.
An affidavit of the constable Annexure R 3/E 2 was also produced.
914 In a writ petition under article 32 rarely, if ever pleadings are meticulously extracted and reproduced in the judgment.
It however become a compelling necessity in this case for the obvious reason that certain inferences were drawn and submitted for the consideration of this Court by both sides after referring to facts admitted and/or not controverted.
We would, therefore, be justified in deducing the indisputable fact situation that emerges from the rival affidavits and then proceed to draw necessary permissible inferences that flow from them.
It is established that C. Daniel and C. Paul for whose production before this Court this petition is filed are admittedly respectable citizens, the former being the Headmaster of the Junior High School at Huining village and the latter being Assistant Pastor, residing at Huining village.
It is equally well established that the 21st Sikh Regiment is stationed at Ukhrul, Manipur East District and has set up a camp known as Phungrei Camp, and that Huining village falls within the operational area of this Regiment.
The jawans of this Regiment admittedly visited Huining village on March 6, 1982 and carried out extensive combing operation for couple of hours.
They arrested at some point of time one R. Rashing of Huining village.
It is admitted that Mr. Joshi, Commissioner (East) Ukhrul visited Huining village on March 7, 1982 which would show that something untoward had occurred as complained by the petitioner, on March 6, 1982 at Huining village.
And this inference is reinforced by the fact that certain certificates purporting to vouchsafe good conduct of the personnel of security forces which carried out combing operation were obtained by the army jawans from the village inhabitants which have been produced in the earlier petitions.
C. Daniel and C. Paul were at Phungrei Camp the allegation of the petitioner being that they were arrested and taken away while the contention of the respondents is that they were called at the camp for identification of R. Rashing.
The fact which indisputably emerges is that C. Daniel and C. Paul were brought from Huining village by the army jawans and were taken to Phungrei Camp.
It is admitted by the respondents that C. Daniel and C. Paul were at Phungrei Camp at the instance of army officers on March 10, 1982 and spent the night at the camp between March 10 and March 11, 1982.
According to the respondents ' Shri Machihan and Shri Shangam arrived at Phungrei Camp on March 11, 1982 between 9.45 a.m. and 10.00 a.m. and they left in company with C. Daniel and C. Paul who were brought to the camp gate by Subedar Sucha Singh.
It therefore 915 unquestionably transpires that from March 10, 1982 somewhere in the noon or afternoon till March 11, 1982 around 10.00 a.m. C. Daniel and C. Paul were, if not in the custody under the surveillance and at the request and behest of the 4th respondent in the camp and they left Paungrei Camp around 10.00 a.m. on March 11, 1982 in company of Mr. Machihan and Mr. Shangnam, a fact disputed and seriously controverted by the petitioner.
Since March 10, 1982 C. Daniel and C. Paul have not returned to their village and their whereabouts are not known.
They were last seen alive in Phungrei Army Camp.
Therefore, the first question which on preponderance of probabilities this Court must examine is whether C. Daniel and C. Paul left Phungrei Camp on March 11, 1982 around 10.00 a.m. or somewhere thereabout because it could not be seriously questioned that since then no one has seen them, except as stated by the two ladies that they were seen being led away by army jawans on March 15, 1982.
Affidavit of Mrs. Thingkhulia, wife of C. Daniel even if it is one of a vitally interested witness would permit us to hold that since the jawans and officers of the 4th respondent took away C. Daniel on March 10, 1982, he has not been seen by anyone including her except on March 15, 1982 again in custody of army jawans.
That averment is disputed and for the present it may be kept out of consideration.
That would be equally true of C. Paul in respect of whom his wife Mrs. Vangamla has filed an affidavit.
Mr. K.G. Bhagat, Additional Solicitor General while reiterating that once these two persons left the army camp on March 11, 1982 by about 10.00 a.m. the 4th respondent and its subordinate will have no knowledge about their where abouts and they cannot be called upon to explain why they are not traceable, and he proceeded to explore various possibilities as to what, might have happened.
It is not necessary to speculate in that behalf because the real question is whether on the material placed on record, is it possible to affirmately arrive at a conclusion that C. Daniel and C. Paul left the Phungrei Camp latest by 10.00 a.m. or thereabout on March 11, 1982.
Obviously, the burden would be on the respondents 1, 2 and 4 to substantiate their contention once having admitted that C. Daniel and C. Paul were in the camp, at their request and behest even if not actually arrested from the afternoon of March 10, 1982.
916 The stand taken in the first affidavit of Shri J.C. Sachdeva, which merely reproduces extracts from the affidavits in earlier writ petitions, is that C. Daniel and C. Paul were called for the purpose identification of certain suspects on March 10, 1982 and were allowed to go on March 11, 1982 and the security forces have no information about them after they "were released".
Mark the words `called at the army camp and were released '.
The word `released ' would indicate that they were once held captive and were subsequently permitted to go.
But the more important lacuna or omission in the first affidavit is about the name of Mr. Mr. Shangnam as having come to the army camp and C. Daniel and C. Paul accompanied him and Machihan.
Name of Shangnam is conspicuous by its silence.
This omission is glaring because at that stage it was not clear whether Shangnam would be disclosing some facts.
H.L. Machihan 's name is referred to because he had already made a complaint to the Deputy Commissioner on March 29, 1982.
The stand now taken is that C. Deniel and C.Paul were brought to the army camp as army authority wanted them to indentify R. Rashing, who was arrested as a suspect and that C. Daniel and C. Paul were not arrested or were not held as suspects.
It is not made clear whether C. Daniel and C. Paul were brought in an army vehicle.
It is equally not made clear why soon after identifying R. Rashing which would hardly require a couple of minutes, they were not sent back in army vehicle.
It is asserted on behalf of the 4th respondent that C. Daniel and C Paul were reluctant to leave the army camp at night and at their request they were allowed to stay at the army camp.
This is far from convincing.
If what the petitioner asserts is true that C. Daniel and C. Paul were arrested and treated in an unbecoming manner, they would be least inclined to spend a night, if they were free agents to leave the place, at the Army camp, hardly a cosy place in an insurgently infested area.
Assuming that the respondents are right in saying that on account of fear of moving out at night in a jungle area infested with insurgents, according to them, they left the army camp on March 11, 1982 around 10.00 a.m.
The respondents assert that H. L. Machihan, a village Headman and C. Shangnam, village Authority Member came to army camp on March 11, 1982 to enquire about C. Daniel and C. Paul and further to enquire why they had not returned and at that time Subedar Sucha Singh on being informed by Guard Commander Havaldar Kultar Singh that two persons from Huining village had come and wanted to meet someone from the battalion whereupon Subedar Sucha Singh 917 went to the gate and met the two persons.
It is further averred that at that time H. L. Machihan and C. Shangnam introduced themselves as such and enquired from Subedar Sucha Singh about C. Daniel and C. Paul, whereupon Subedar Sucha Singh told them that they had spent the night at the army camp.
Subedar Sucha Singh thereupon informed Maj.
Joginder Singh Lamba, Adjutant that two persons have come to enquire about C. Daniel and C. Paul whereupon Joginder Singh Lamba told Subedar Sucha Singh that C. Daniel and C. Paul should return to their village with Shri H. L. Machihan and Shri C. Shangnam.
The respondents further averred that thereupon Havaldar Kultar Singh and Subedar Sucha Singh accompanied C. Daniel and C. Paul to the gate and permitted them to accompany H. L. Machihan and Shangnam.
There are affidavits to that effect of Major Joginder Singh Lamba, Adjutant, Subedar Sucha Singh and Havaldar Kultar Singh.
They have also produced extracts from the register maintained at the camp gate showing the entry and exist in and out of the army camp.
The relevant extracts were produced at Annexures B/1 and B/2.
The original registers were submitted to the Court in sealed envelope with a request that the other entries except the relevant entries may not be exposed as the same may endanger the safety of some innocent persons.
We have glanced through the registers.
As copies of the relevant entries from the registers were annexed to the affidavit of Mr. Pruthi, it was unnecessary to give inspection of the whole of the registers to the petitioner in the facts and circumstances of this petition.
The evidence furnished by entries in the registers leaves us cold and unconvinced.
It appears to be an attempt at supporting affidavits by some so called contemporaneous documents which apart from being unworthy of credit, the circumstances in which they came to light add to our apprehension about its genuineness.
We may recall here the wavering position about existence or otherwise of any record taken in the affidavit of Mr. Sachdeva and the statement made by Mr. P. P. Singh before the Court denying the existence of any record as late as May 5, 1983.
And the affidavits of various members of security forces personnel bear the date between May 24, 1983 and first week of June 1983 that is subsequent to the order dated May 5, 1983.
To begin with, both H. D. Machihan and C. Shangam in their affidavits filed long time back stated that they had not gone to Phungrei Camp on March 11, 1982 either in the morning or at any 918 time of the day.
H. L. Machihan denied that C. Daniel and C. Paul were released in his presence on March 11, 1982.
There is an affidavit to the same effect of Shri Shangnam.
These are two persons in whose company according to respondents C. Daniel and C. Paul left army camp on March 11, 1983.
Turning to the affidavits filed on behalf of the respondents to substantiate the stand of the respondents, Havaldar Kultar Singh says in his affidavit that at about 9.45 A.M. on March 11, 1982, two persons from Huining village arrived at the gate of the army camp and introduced themselves as Shri Machihan and Shri Shangnam.
He further says that they told him that they had come to enquire about C. Daniel and C. Paul as they had not returned to the village on the previous day.
He does not say that H.D. Machihan and Shri C. Shangnam individually or collectively was or were permitted to enter the camp.
In fact, his affidavit read with the affidavit of Subedar Sucha Singh clearly shows that Havaldar Kultar Singh went to Subedar Sucha Singh and informed him about the arrival of Machihan and Shangnam and inquired about C. Daniel and C. Paul whereupon Subedar Sucha Singh came to the gate, talked to H.L. Machihan and Shri Shangnam and then returned inside the camp and came out with C. Daniel and C. Paul and they were brought to the gate and they both left in company of H.L. Machihan and Shangnam.
This would unmistakably show that H.L. Machihan and Shangnam never entered the army camp, and surprisingly yet in the two extracts Annexures B/1 and B/2, Machihan and Shangnam are shown to have entered the army camp one after the other between 9.45 A.M. and 10.00 A.M. and left at 10.05 A.M.
If Machihan and Shangnam came upto army gate, never entered the same and according to the respondents C. Daniel and C. Paul were brought to the gate of the army camp, there was absolutely no justification for making an entry in the register evidencing that they had both entered the army camp.
There is a further infirmity in that the entry in the name of Shri C. Daniel appearing in the Register on March 10, 1982 appears to be overwritten over another entry which was already there.
Therefore in view of the direct evidence furnished by the affidavits of H.L. Machihan and C. Shangnam, coupled with the suspicious circumstances herein discussed and effort made to bolster up the stand by entries of dubious character as also the eloquent silence in the earlier stage of the proceedings about existence of any record 919 leave us with no alternative but to hold that the respondents have failed to prove that C. Daniel and C. Paul left the army camp on March 11, 1982 around 10.00 A.M.
This inference is further buttressed by the fact that all these documents along with the affidavits were placed on record after this Court made an order on May 5, 1983 clearly pointing out that the affidavit of Shri Sachdeva lacks credibility as the source of information is not traced therein and after Mr. P.P. Singh, learned counsel for the Union of India stated that the first respondent is not in possession of any record in respect of C. Daniel and C. Paul.
There is one curious feature of the whole case which cannot be overlooked.
Petitioner averred and it is supported by the affidavits of H.L. Machihan and C. Shangnam that the army jawans ransacked the houses and tortured the inhabitants in the course of the search on March 6, 1982.
They further averred that in order to save their skin, army jawans obtained false certificates as also signatures on blank papers.
Now if the army authorities had acted within the bounds of legitimate combing operation to trace insurgents, it was not necessary for them to obtain certificates from the inhabitants of village Huining.
In the first affidavit of Mr. Sachdeva, it is stated that in the counter affidavit in Writ Petition No. 550 of 1982 certificates from village authorities and Pastor were obtained by the army authorities contradicting the allegations made in the statements and averments set out in the petition.
There is further evidence that after the authorities of the Manipur State such as Deputy Commissioner and Superintendent of Police started making enquiries, the army jawans again went to Huining village on May 8 1982 and obtained some more certificates as well as signatures on blank papers.
One Yangya Anei Tanghul @ Maluganai Tangkhul, a Police Constable attached to Manipur Police Department was asked to accompany the army jawans when they visited Huining village on May 8, 1982.
It is admitted that this Police Constable accompanied the army jawans on May 8, 1982.
In his affidavit, the Police Constable states that security forces personnel obtained the signatures from the Village Authority Members as proof of their having furnished the information to the village people regarding release of C. Daniel and C. Paul and even he was asked to put his signature as a witness which he duly complied.
Why were army jawans so keen to obtain certificates from village people both on March 6, 1982 and on May 8, 1982 and certificates appear to have been obtained with a view to either 920 white washing their activities or exonerating the army jawans from their improper actions which were questioned by the village people.
We may here briefly refer to the various certificates Appendix `O ', annexures to the counter affidavit by Mr. J.C. Sachdeva in Writ Petition No. 550 of 1982 to show that the very language used in the certificates obtained by the personnel of the security forces would be a give away showing how the army people were trying to cover their illegitimate actions.
These certificates provide tell tale evidence of how a very spurious attempt was made to white wash some of the actions of the jawans of the army.
We may specifically refer to certificates produced at Appendix `L ' in which it is stated that the Deputy Commissioner of Ukhrul Mr. J.P. Joshi visited village Huining on March 7, 1982 from 7 A.M. to 11 A.M. and instigated the villagers against the security forces.
The village residents of Huining were so co operative with the security forces that they refused to be instigated by him and on other hand they praised the security forces for the good treatment meted out to the villagers by the security forces.
The attempt to blemish the good name of Mr. Joshi when the village headman and others had approached to ventilate their grievance against the army personnel, we refrain from using strong term, is crude, if not counter productive.
On the contrary, it would be legitimate to infer that there was something very despicable in the conduct of the army jawans and therefore to forestall any action they procured certificates which inevitably must be under threat, duress or coercion.
Therefore, these certificates leave us cold.
In the meantime, certain events occurred of which notice should be taken.
The first search was carried out by the army jawans on March 6, 1982.
Soon after presumably upon a complaint of the local inhabitants, Mr. Joshi, Deputy Commissioner visited Huining village on March 7, 1982.
This is admitted by Mr. Sachdeva in his first affidavit.
Obviously, the village people must have complained to the Deputy Commissioner about the misbehavior of the members of the security forces.
Presumably, acting upon the complaint, Deputy Commissioner Mr. Joshi directed Superintendent of Police (East) Ukhrul to enquire about various persons detained by the army officers and missing since then.
Amongst the names of 7 persons, the Deputy Commissioner has set out the names of C. Daniel and C. Paul.
The Superintendent of Police was called upon to furnish the report about the whereabouts of the persons whose names were set out in the direction given to him.
In response 921 to this enquiry by the Deputy Commissioner, the Superintendent of Police submitted his report on March 27, 1982 part of which may be extracted: "Following persons were released by Assam Rifles on 19/3/82: 1) Rr.
Nganaopam () 2) Pr.
Pheireisang () All of Phungcham village 3) Hr.
Wungnaokan () As regards persons belonging to Huining village it is learnt that K. Rashing is still under interrogation with Army & whereabouts of other persons are not known.
They were released one day after arrest by army as reported.
" It appears from this report that with regard to C. Daniel and C. Paul, the Superintendent of Police could not ascertain their whereabouts but he noted the fact that according to the army authority, they were released one day after the arrest by army authorities.
It again appears that the assertion by Respondents 1, 2 and 4 that C. Daniel and C. Paul were invited to identify R. Rashing, is not borne out by this report because the Superintendent of Police states that they were released after their arrest.
Pursuant to this report, the Deputy Commissioner submitted a report to the Chief Secretary, Manipur State that C. Daniel and C. Paul are missing and that the certificates are not correct and that the village headman had stated that they were made to sign blank papers.
Before this report was submitted, the Deputy Commissioner had received an application signed by five persons including village headmen Machihan setting out the details about the events that occurred on March 10, 1982 and the fact that their signatures were obtained by the army authorities on blank papers and that they had not signed the certificates and it was not true that C. Daniel and C. Paul were released in their presence on March 11, 1982.
From the evidence herein collated, it unquestionably follows that not only C. Daniel and C. Paul after admittedly they were taken presumably under arrest to Phungrei Camp on March 10, 1982 in the afternoon, they never left the Phungrei Camp on March 11, 1982 as claimed on the respondents in company of H.L. Machihan and 922 Shangnam, but a very crude attempt was made to concoct evidence in the from of certificates with a view to disowning the responsibility to explain what happened to C. Daniel and C. Paul after they were taken to army camp on March 10, 1982.
The affidavit of gateman Kultar Singh and Adjutant Subedar Sucha Singh and the Registers do not carry conviction, more so in the light of the fact that if what is claimed is genuine this subsequent attempt to doctor facts would not have been undertaken.
We are therefore constrained to reject the contention that C. Daniel and C. Paul left the army camp on March 11, 1982 either on their own or in company of Machihan and Shangnam.
In reaching the conclusion that the respondents have failed to discharge the burden heavily lying on them to affirmatively establish, once having admitted taking them to army camp on March 10, 1983 that C. Daniel and C. Paul left Phungrei Camp on March 11, 1982 around 10.00 A.M., we have completely overlooked and not take into consideration the affidavits of Mrs. Thingkhuila, wife of Shri C. Daniel and Mrs. Vangamala, wife of Shri C. Paul that they had seen C. Daniel and C. Paul being led away by army personnel on March 15, 1982, as contended by Mr. Bhagat.
Once we unerringly reach the conclusion that C. Daniel and C. Paul were taken to Pungrei Camp by officers and jawans of 21st Sikh Regiment on March 10, 1982 and they never left the army camp as canvassed on behalf of the respondents on March 11, 1982, it is obligatory upon the respondents to produce C. Daniel and C. Paul and to explain their whereabouts, more so because respondents claim the power to arrest and question anyone under the provisions of Armed Forces (Special Powers) Act, 1958.
We may now examine some technical contentions raised on behalf of the respondents.
Mr. Bhagat for the respondents contended that once the respondents have adopted a position that C. Daniel and C. Paul had come to the army camp at the request of the army authority, but they left that place on their own in company of their friends, a writ of habeas corpus cannot be issued, and the respondents cannot be called upon to file a return to the writ.
When a petition for a writ 923 of habeas corpus under article 32 of the Constitution is moved before the Court, ordinarily the Court would not issue ex parte a writ of habeas corpus unless the urgency of tee situation so demands or issuing of a notice motion was likely to result in defeat of justice.
Further the Court will be reluctant to issue a writ of habeas corpus ex parte where the fact of detention may be controverted and it may become necessary to investigate the facts.
The normal practice is that when a petition for a writ of habeas corpus is moved, the Court would direct a notice to be served upon the respondents with a view to affording the respondents to file evidence in reply.
If the facts alleged in the petition are controverted by the respondents appearing in response to the notice by filing its evidence, the Court would proceed to investigate the facts to determine whether there is substance in the petition for a writ of habeas corpus.
(See Holsbury 's Laws of England, Fourth Edition, Vol.
11, paragraph 1482).
If on investigation of facts, the Court rejects the contention of the respondent and is satisfied that the respondent was responsible for unauthorised and illegal detention of the person or persons in respect of whom the writ is sought, the Court would issue a writ of hebeas corpus which would make it obligatory for the respondents to file a return.
It is in this sense that in Thomas John Barnardo vs Mary Ford(1), the House of Lords held that even if upon a notice of motion, it is contended by the person against whom the writ is sought that the person alleged to be in the custody of the respondents has long since left the custody, a writ can be issued and return insisted upon.
A few facts of that case will render some assistance in ascertaining the ratio of the case.
One Harry Gossage was put at the instance of a clergyman in an institute comprising homes for destitute children and of which appellant Thomas John Barnardo was the founder and director.
Mother of Harry Gossage desired that her son Harry Gossage be transferred to St. Vincent 's Home, Harrow Road, a Catholic home and a request to that effect was made to the appellant.
After some correspondence was exchanged between the parties, a petition was moved in the Queen 's Bench Division, whereupon a summons was served upon the appellant to attend the Court to show cause why a writ of habeas corpus commanding him to produce the body of the said Harry Gossage should not be issued.
The appellant filed several affidavits inter alia contending that the boy Harry Gossage, was adopted by one Mr. 924 Norton of Canada on November 16, 1888 long before the respondent mother coveyed a desire to transfer the boy to the Catholic home.
It was further contended on behalf of the appellant that Harry Gossage was not with him since November 16, 1888 when he transferred him into the care of Mr. Norton and at the time of the service of the summons, he was not in his custody or power.
In a proceeding before Methew, J. after cross examination of the appellant the learned Judge refused to order the writ to be issued.
In the meantime, the case in Reg.
vs Barnardo Tye 's(1) case was decided by the Court of Appeal in which it was laid down that it was not an excuse for non compliance with a writ that the defendant had parted with the custody of the child to another person if he had done so wrongfully, and accordingly a fresh application was made for a writ of habeas corpus.
After hearing the arguments, the Judges of the Queens Bench Division made absolute the order for the issue of the writ.
The appellant approached the House of Lords.
It is in this context that the Court held that the respondent was entitled to a return of the writ.
To some extent, the position before us is identical, if not wholly similar.
When the petition in the present case was moved before this Court, rule nisi was issued calling upon the respondents to submit their version about the detention of C. Daniel and C. Paul.
The respondents 1, 2 and 4 in their various affidavits adopted a positive stand that C. Daniel and C. Paul were taken by the army jawans on March 10, 1982, though not under arrest, to the army camp for the purpose of identifying Rashing and that they spent the night at the army camp and that they left the army camp on March 11, 1982 in company of H.L. Machihan and C. Shangnam.
The petitioner and those filing affidavits in support including H.L. Machihan, C. Shangnam and Smt.
Thingkhuila, wife of C. Daniel and Smt.
Vangamla, wife of Shri C. Paul denied that C. Daniel and C. Paul left army camp on March 11, 1982 and returned to the village, therefore an issue squarely arose to ascertain whether the positive stand of the respondents was borne out by the facts alleged and proof offered.
The burden obviously was on the respondents to make good the defence.
Now that the facts are clearly established which led to the rejection of the contention of the respondents that C. Daniel and C. Paul ever left the army camp on March 11, 1982 around 10.00 A.M., the necessary corollary being that they were last seen alive under the surveillance, control and 925 command of the army authority at Phugrei Camp, it would be necessary not only to issue a writ of habeas corpus thereby calling upon the respondents 1,2 and 4 to file the return.
In this context, it may be pointed out that the petitioner has prayed for issuing of a writ of habeas corpus directing the respondents to produce C. Daniel, retired Naib Subedar of Manipur Riffles and Headmaster of the Junior High School of Huining village and C. Paul, Assistant Pastor of Huining Baptist Church, the writ must be issued and the petition must succeed to that extent.
It may be mentioned that the Manipur State Authorities Respondent 3 had received numerous complaints about the behaviour of the army personnel.
The search in village Huining was taken by the jawans of 21st Sikh Regiment on March 6, 1982.
On March 7, 1982, Mr. Joshi had to visit the village when he received complaints of torture and ill treatment of village inhabitants at the hands of the personnel of the security forces.
Thereafter certain enquiries were made by the Chief Secretary, Manipur State which we have already deal with.
In the course of hearing, a request was made by Mr. Vaidyanathan, learned counsel for the petitioner and at a later date by Miss Haskar that the Manipur State Government be called upon to produce; (1) Report of the Superintendent of Police (ii) Report of the Deputy Commissioner and (iii) Statement of Yangya Anei Tangkhul alias Malugnai Tangkhul.
A copy of the third document is already produced.
As far as reports mentioned at (i) and (ii), privilege was claimed on behalf of the E. Kunjeshwar Singh, Secretary (Home), Manipur.
In the affidavit claiming privilege, it is stated that the aforementioned two reports dated April 28, 1982 and 31st may, 1982 were with regard to the incident that occurred on March 10, 1982.
Before adjudicating upon the claim of privilege, we called upon Mr. V. C. Mahajan, learned counsel for the State of Manipur to produce the reports for our perusal.
We read the reports.
We are not inclined to examine the question of privilege for the obvious reason that these reports are hardly helpful in any manner in the disposal of this petition, and further the three relevant documents, namely, the telex message sent by the Deputy Commissioner to Superintendent of Police, the report made by the Superintendent of Police to the Deputy Commissioner and the short report submitted by the Deputy Commissioner to the Chief Secretary, Manipur State have been disclosed in the proceedings.
Therefore, we do not propose merely to add to the length of the judgment by examining the question of the privilege claimed in respect of the two reports first dated 926 April 28, 1982 by the Superintendent of Police and another dated May 31, 1982 by the Deputy Commissioner.
Accordingly, this petition is allowed and we direct that a writ of habeas corpus be issued to the respondents 1, 2 and 4 commanding them to produce C. Daniel, retired Naik Subedar of Manipur Riffles and Headmaster of the Junior High School of Huining Village and C. Paul, Assistant Paster of Huining Baptist Church, who were taken to Phungrei Camp by the jawans of 21st Sikh Regiment on March 10, 1982 before this Court on Dec. 12, 1983 and file the return.
H. section K. Petition allowed.
[/INST]The respondent who was a party to a subsisting contract with the Government for widening or a road wrote a letter to the concerned Executive Engineer stating that he was closing the said contract.
1 he appellant contended that the contents of the letter did not have the effect of putting an end to the contract.
Dismissing the appeal, ^ HELD: After the letter, the contract came to an end by breach and was no longer subsisting.
Acceptance of the letter by the authorities was unnecessary for putting an end to the contract although the breach may give rise to an action for damages.
[864 B C]
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<s>[INST] Summarize the judgementCivil Appeal No. 274 of 1959.
Appeal by special leave from the judgment and order dated July 27,1956, of the Madras High Court, in C.R.P. No. 90 of 1955.
N. C. Chatterjee, R. Ganapathy Iyer and G. Gopalakrishnan for the appellant.
K. N. Rajagopala Sastri, R. Mahalinga Iyer and M. section K. Aiyengar, for respondent No. 1. 1960.
November, 28.
The Judgment of the Court was delivered by WANCHOO, J.
This is an appeal by special leave in an insolvency matter.
The brief facts necessary for present purposes are these.
S.V.N. Nanappa Naicker and his sons were adjudged insolvents on an application of Smt.
Engammal (hereinafter referred to as the respondent).
They had preferred an appeal before the High Court of Madras but it was dismissed on April 17, 1953.
Thereafter the official receiver took steps to sell the property of the insolvents, which consisted of two lots, the first lot comprising 145 acres 10 cents of dry land and masonry house, and the second lot, 8 acres and odd of dry land.
Both these properties were subject to mortgage.
The official receiver fixed September 28, 1953, for sale of the properties by auction.
Fifteen of the creditors were present when the sale by auction took place, including the son of the respondent.
No request was made on that day by anyone for postponing the sale and consequently bids were made.
The highest bid for lot 1 was of 692 Rs. 4500/ and the highest bid for lot 2 was of Rs. 70/ .
Both these bids were made by the appellant who is a brother in law of Nanappa Naicker.
The reason why the two lots were sold for Rs. 4570/ was that there was an encumbrance on the entire property of Rs. 17,200/ .
The official receiver did not close the sale on that day in the hope that some higher offers might be made by the creditors and postponed it to various dates upto October 26, 1953.
On all these dates, the respondent 's son was present but no higher offer was made on behalf of the respondent.
On October 26, 1953, an application was made on behalf of the respondent praying that the sale be postponed for another three months apparently on the ground that there had been drought in that area for some years past and agricultural lands were not fetching good price.
The official receiver, however, saw no reason to postpone the sale, particularly when no higher offer was forthcoming from the side of the respondent and decided to knock down the properties in favour of the appellant.
Later, an application was made on behalf of the respondent on November 18, 1953 under section 68 of the , No. V of 1920 (hereinafter referred to as the Act).
The case of the respondent was that the sale had been made for a very inadequate price and there had been drought in the village for several years in the past and there was very great stringency in the money market and it was hoped that if the sale was postponed for three or four months, the properties would fetch a good price of not less than Rs. 15,000/ , exclusive of the sum due on the encumbrances.
The respondent also stated that if the sale was postponed for three months she would be prepared to bid more than Rs. 7500/ for the properties.
There were some other allegations in the petition suggesting collusion between the official receiver on the one side and the 693 insolvent and the appellant on the other.
The respondent therefore prayed that the official receiver should be ordered not to sell the properties to the appellant at the price bid by him.
The application was opposed by the official receiver as well as by the appellant.
The official receiver contended that he had done his best and that no higher bid could be obtained.
He also denied the allegation made against him in the nature of collusion and also about the manner of conducting the sale.
The Subordinate Judge allowed the application on the ground that the price fetched was low and that the general body of creditors to whom debts to the extent of Rs. 30,000/ were payable would be considerably prejudiced if the sale was allowed to stand.
Thus the only ground on which the application under section 68 was allowed was that the price fetched was low.
Thereupon there was an appeal to the District Judge under section 75 of the Act.
The District Judge allowed the appeal.
He pointed out that there was nothing to show that there was any irregularity in the conduct of the sale.
He also pointed out that there was no reason to hold that the official receiver was in any way in collusion with the insolvent and the appellant.
He also pointed out that the respondent 's son was all along present and if he really thought that the price fetched at the auction sale was low he could offer a higher price on behalf of the respondent.
Finally, the District Judge held that the Subordinate Judge was not right in his view that the property had been sold for a low price and gave various reasons for coming to that conclusion.
The matter was then taken in revision under the proviso to section 75 of the Act, which lays down that "the High Court for the purpose of satisfying itself that an order made in any appeal decided by the District Court was according to law, may call for the case and pass such order with respect thereto as it 694 thinks fit".
The High Court however did not consider the question whether the order of the District Judge was according to law.
It appears that before the High Court an offer was made by the respondent that she was prepared to deposit Rs. 9,000/ if a fresh auction was held and would start the bid at Rs. 9,000/ and also that she would pay Rs. 1,000/ to the appellant for any loss caused to him.
The High Court accepted this offer, though it was of opinion that it could not be said that the price fetched at the auction was unconscionably low; it however held that the price was low considering the extent and nature of the properties, and if Rs. 9,000/ or more could be got for the properties the creditors would receive appreciably more as dividend.
It therefore allowed the revision on the terms offered by the respondent.
It is this order of the High Court which has been brought before us by special leave and the only question that has been urged on behalf of the appellant is that the High Court had no jurisdiction to interfere with the order of the District Judge unless it came to the conclusion that the order was not according to law.
It is contended at the High Court 's order does not show that it applied its mind to the question whether the order of the District Judge was according to law or not and that the High Court seems to have been carried away by the offer made by the respondent to make minimum bid of Rs. 9,000/ for those properties.
It is pointed out however that this offer was made three years after the auction and is no indication that the price fetched in the auction in 1953 was inadequate, for prices may have risen during this period of three years.
On the other hand, it is contended on behalf of the respondent that the court 's power under section 68 in appeal from an act of the receiver is much wider than the power of the court in dealing with 695 auction sales in execution proceedings and therefore the Subordinate Judge was right in setting aside the act of the receiver in knowing down the properties to the appellant and the High Court was consequently right in setting aside the order of the District Judge and resorting that of the Subordinate Judge.
It may be accepted that the power of the court under section 68 in not hedged in by those considerations which apply in cases of auction sales in execution proceedings.
Even so, the power under section 68 is a judicial power and must be exercised on well recognised principles, justifying interference with an act of the receiver which he is empowered to do under section 59 (a) of the Act.
The fact that the act of the receiver in selling properties under section 59 (a) is subject to the control of the court under section 68 does not mean that the court can arbitrarily set aside a sale decided upon by the official receiver.
It is true that the court has to look in insolvency proceedings to the interest in the first place of the general body of creditors; in the second place to the interest of the insolvent, and lastly, where a sale has been decided upon by the official receiver to the interest of the intending purchaser in that order.
Even so, the decision of the official receiver in favour of a sale should not be set aside unless there are good grounds for interfering with the discretion exercised by the official receiver.
These grounds may be wider than the grounds envisaged in auction sales in execution proceedings.
Even so, there must be judicial grounds on which the court will act in setting aside the sale decided upon by the official receiver.
These grounds may be, for example, that there was fraud or collusion between the receiver and the insolvent or the intending purchaser; the court may be also interfere if it is of opinion that there were irregularities in the conduct of the sale which might have affected the 696 price fetched at the sale; again, even though there may be no collusion, fraud or irregularity, the price fetched may still be so low as to justify the court to hold that the property should not be sold at that price.
These grounds and similar other grounds depending upon particular circumstances of each case may justify a court in interfering with the act of the official receiver in the case of sale by him under section 59 (a) of the Act.
The High Court had therefore to see whether the Subordinate Judge 's order was justified on these grounds and whether the District Judge made any mistake in law in reversing that order.
If the Subordinate Judge 's order was not justified on these grounds or if the District Judge made no mistake in law in interfering with that order, the High Court cannot interfere in revision under the proviso to section 75, for the High Court 's jurisdiction to interfere arises only if it is of opinion that the District Judge 's order was not according to law.
If the High Court comes to that conclusion, it can then pass such order as it may think fit.
Let us therefore turn first to the order of the Subordinate Judge and see if it is justified on the ground mentioned above.
Now both the Subordinate Judge and the District Judge found that there was no reason to hold that there was any fraud or collusion on the part of the official receiver in this case.
Further, the Subordinate Judge did not find that there was any irregularity committed by the official receiver in conducting the sale and the District Judge has definitely found that there was no such irregularity.
The only ground on which the Subordinate Judge held that the sale should be set aside was that the price fetched was low.
Now if that ground is justified, the Subordinate Judge would have been right in interfering with the sale proposed by the official receiver.
That matter has been considered by the District Judge and he has 697 held that there is no reason to hold that the properties were being sold for a low price.
The Subordinate Judge in dealing with the question of price has pointed out that the insolvent had valued the properties at Rs. 80,000/ , though he was conscious of the fact that this was properly an exaggeration.
He therefore did not hold that the properties were worth Rs. 80,000/ .
He came to the conclusion that the properties would be worth at least Rs. 40,000/ and the main reason why he said so was that the properties had been mortgaged for over Rs. 20,000/ in 1936.
According to him there seems to be some infallible rule that one must double the mortgaged money in order to arrive at the valuation of the properties mortgaged.
The District Judge has pointed out and we think, rightly that there can be no such rule.
Therefore, the main basis on which the Subordinate Judge held that the properties were worth Rs. 40,000/ and therefore the bid of the appellant was low, falls to the ground as pointed out by the District Judge.
The Subordinate Judge also pointed out that the insolvents were in possession of the properties during the pendency of the insolvency appeal and had been depositing Rs. 2000/ annually on the order of the High Court in order to remain in possession.
The Subordinate Judge however did not calculate the value of the properties on the basis that their annual income was Rs. 2,000/ and rightly so because the amount deposited by a litigant on the order of a court in order to retain possession of some property cannot necessarily lead to the inference that was the annual income of the property.
It seems therefore that the District Judge was right when he held that there was no evidence on the record which would justify the finding of the Subordinate Judge that the price fetched by the sale in this case was inadequate or unreasonable.
We may add that it was open to the respondent to show to the Subordinate Judge by well recognised methods 698 of valuation as to what the value of the properties was.
The Subordinate Judge should have then taken into account the total amount of the encumbrance on these properties.
The mortgage deed is not on the record and we do not know what interest, if any, the mortgage money carried.
Before the Subordinate Judge could come to the conclusion that the price offered by the appellant was low, he had first to find out the price of the properties by some recognised method.
He had then to find what was the total amount of encumbrance on the properties.
If on finding these things it appeared that the difference between the two was much larger than the price bid by the appellant, the Subordinate Judge would have been justified in interfering with the order of the official receiver, even if there was no question of fraud, collusion or irregularity in the present case.
But no such findings have been given by the Subordinate Judge and the District Judge consequently was right when he said that the view of the Subordinate Judge that the price fetched was inadequate and unreasonable is incorrect.
Unfortunately, the High Court did not address itself to the question whether the order of the District Judge was according to law or not.
It seems to have been impressed by the offer made by the respondent, overlooking the fact that the offer of Rs. 9,000/ as the minimum bid and Rs. 1000/ for the appellant was being made three years after the auction during which, for all that we know, the prices might have risen.
Further, the High Court has remarked that the price offered by the appellant was not unconscionably low but it felt that it was still low on a comparison with the offer made by the respondent in 1956.
As the High Court did not consider the question whether the order of the District Judge was according to law or not and did not come to the conclusion that order was not according to law, the High Court would have no jurisdiction to interfere with that order.
699 Learned counsel for the respondent urged that even though the High Court may not have considered the matter from this aspect, we should not interfere with the order of the High Court if we are satisfied that in fact the price offered by the appellant was low, in the circumstances prevailing in 1953.
We agree that if it was possible for us to come to the conclusion that the price offered by the appellant was low, there would be no reason to interfere with the order of the High Court, even though it might not have considered what was necessary for it to do for interfering under the proviso to section 75; but as are have pointed earlier, there is no sufficient material on the record on which we can say that the price offered by the appellant is low.
As we have already pointed out, no attempt was made in the Subordinate Judge 's court to value the properties by any of the well recognised methods by which properties are valued.
Further no attempt was made to show the total encumbrance on the property.
Unless the valuation was properly made and the encumbrance was found out, it is not possible to say that the offer made by the appellant was low, for that would depend upon the difference between the value of the properties and the amount of encumbrance.
In these circumstances, it is not possible for us to say that the order of the District Judge when he held that the Subordinate Judge was not right in holding that the price fetched was inadequate or unreasonable, is not according to law.
We therefore allow the appeal, set aside the order of the High Court and restore the order of the District Judge.
The appellant will get his costs in this Court from the first respondent.
Appeal allowed.
[/INST]Though a few isolated transactions of purchase of raw mate rials in India by a manufacturer carrying on business outside India may not amount to the carrying on of an " operation " in India within the meaning of section 42 (3) of the Indian Income tax Act, where raw materials are purchased systematically and habitually in India through an established agency having special skill and competency in selecting the goods, such an activity will be an "operation" within a. 42 (3), and the portion of the profits 455 attributable to the purchases in India can be assessed to incometax under section 42(1) and (3) of the Indian Income tax Act.
Bangalore Woollen, Cotton & Silk Mills Co. Ltd. vs Commis sioner of Income tax, Madras , Commissioner of Income tax, Bombay vs Ahmedbhai Umarbhai d Co. ([1950] S.C.R. 335), Commissioners of Taxation vs Kirk ([1900] A.C. 588), Rogers Pyatt Shellac Co. vs Secretary of State for India ([1925] I.L.R. and Webb Sons & Co. vs Commissioner of Incometax, East Punjab ([1950] relied on.
An isolated transaction between a non resident and a resident in India without any course of dealings such as might fairly be described as a business connection does not attract the application of section 42, but when there is a continuity of business relationship between the person in India who helps to make the profits and the person outside India who receives or realises the profits, such relationship constitutes a business connection.
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<s>[INST] Summarize the judgementAppeal No. 65 of 1975.
From the Judgment and Order dated 3.12.
1973 of the Gujarat High Court in I.T.R. No. 35 of 1972.
1169 T.A. Ramachandran, Mrs. J. Ramachandran and S.C. Ratelh for the Appellant.
V.S. Desai and Ms. A. Subhashini for the Respondent.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This appeal by certificate is di rected against the judgment of the High Court of Gujarat.
Assessee is assessed as an individual and she derived income from "other sources" being in the shape of interest, dividends etc.
The relevant year of assessment is 1966 67.
During this year assessee claimed deduction of Rs.26986 being interest paid to Barivallabndas Kalidas Estate on loans taken by her.
The Income tax Officer found that out of the loans real investment was of a sum of Rs. 1250 only.
He disallowed the claim to the extent of Rs. 10,275 on propor tionate basis.
According to him this claim could not be admitted under section 57(iii) of the Income tax Act of 1961.
Assessee 's first appeal to the Appellate Assistant Commissioner was rejected.
The Appellate Authority relied upon the ratio of the decision of the Bombay High Court in Bai Bhuriben Ballubhai vs Commissioner of Income tax, Bombay North Cutch and Saurashtra.
[1956] ITR (XXIX) 543 and dis missed the appeal.
In further appeal before the Tribunal the claim of the assessee was reiterated by contending that expenditure under the head of payment of income tax and wealth tax and annuity deposits should have been taken as revenue expenditure and the claim of interest in respect of such loans should have been admitted.
It was further contended that the assessee instead of liquidating the investments which were return oriented, found it commercially expedient and viable to raise a loan instead of disturbing the investments and, therefore, the claim became admissible in law.
The Tribunal did not accept this contention and observed that the loans were taken for meeting her personal obligation like payment of taxes and deposit of annuity and these had nothing to do with the business.
The Tribunal also relied upon the ratio of Bombay High Court decision referred to above.
As the Tribunal dismissed the appeal assessee asked for the case to be stated to the High Court and the following question was referred for its opinion: "Whether on the facts and in the circumstances of the case, 1170 payment of interest to the extent of Rs. 10.27 was not an admissible deduction under section 57(iii) of the Incometax Act?" The High Court referred to various authorities and decided against the assessee by concluding that at the relevant time it was obligatory for the assessee to make the annuity deposit and the earning of interest through such deposit was merely incidental.
The High Court further found that the portion of the loan was not intended to meet expenditure wholly and exclusively for the purpose of earning the income and therefore did not come under section 57(iii) of the Act.
It is not disputed by Mr. Ramchandran for the assessee that unless the claim comes within the purview of section 57(iii) of the Act it would not be admissible as a deduc tion.
That section as far as relevant provides: "The income chargeable under the head 'income from other sources ' shall be computed after making the following deductions, namely: (i). (ii) . (iii) any other expenditure (not being in the nature of capital expenditure) laid out or expended wholly and exclusively for the pur pose of making or earning such income; P r ovided . . . . . . .
E x p l a n a t ion: . . . . . . .
In order that the claim for the deduction could be sustained, it was for the assessee to satisfy the Income tax Officer that the loan interest in respect of which is claimed as deduction was laid out or expended wholly and exclusively for earning the income from out of which the deduction was claimed.
There is no dispute that the provi sion of section 57 of the Act corresponds to section 12(2) of the Act of 1922.
Dealing with a claim under section 12(2) of the 1922 Act this Court in Eastern Investments Ltd. vs Commissioner of Income tax, West Bengal, [ 1 summarised the position of law thus: "On a full review of the facts it is clear that this transaction was voluntarily entered into in order indirectly to facilitate 1171 the carrying on of the business of the company and was made on the ground of commercial expediency.
It therefore falls within the purview of Section 12(2) of the Income tax Act.
1922, before its amendment . . " "This being an investment company, if it borrowed money and utilised the same for its investments on which it earned income.
the interest paid by it on the loans will clearly be a permissible deduction under section 12(2) of the Income tax Act.
" In Commissioner of Income tax, West Bengal vs Rajendra Prasad Moody, 19 this Court observed: "The determination of the question before us turns on the true interpretation of section 57(iii) and it would, therefore.
be convenient to refer to that section, but before we do so, we may point out that section 57(iii) occurs in a fasciculus of sections under the heading "F Income from other sources".
Section 56, which is the first in this group of sections, enacts in sub section (1) that specified in section 14, Items A to B, shall be chargeable to tax under the head "Income from other sources" and sub section (2) includes in such income various items, one of which is "divi dends".
Dividend on shares is thus income chargeable under the head "Income from other sources".
Section 57 provides for certain deductions to be made in computing the income chargeable under the head "Income from other sources" and one of such deductions is that set out in clause (iii).
which reads as fol lows: . . . " "The expenditure to be deductible under section 57(iii) must be laid out or expended wholly and excluSively for the pur pose of making or earning such income In the said decision this Court clearly indi cated that: "It is the purpose of the expenditure that is relevant in determining the applicability of section 57(iii) and that purpose must be making or earning of income.
" The taxing authorities as also the High Court have clearly recorded a 1172 factual finding facts that the expenditure in this case was to meet the personal liability of payment of income tax and wealth tax and annuity.
From the order of the Tribunal as also the judgment of the High Court it appears that the assessee had taken the stand that even if the claim relating to income tax and wealth tax was not admissible.
that part of the claim relatable to annuity deposit should have been admitted as it fetched interest.
We are inclined to agree with the High Court that so far as meeting the liability of income tax and wealth tax is concerned it was indeed a personal one and payment thereof cannot at all be said to be expenditure laid out or expended wholly and exclusively for the purpose of earning income.
So far as annuity deposit is concerned the Tribunal and the High Court have come to the right conclusion that the dominant purpose was not to earn income by way of interest but to meet the statutory liabili ty of making the deposit.
The test to apply is that the expenditure should be wholly and exclusively for the purpose of earning the income.
The fact finding authorities have come to the conclusion that no part of the expenditure came within the purview of section 57(iii,) of the Act.
Mr. Ramchandran then maintained that even if there was an indirect link between the expenditure and the income earned, the claim would be admissible and relied upon the observations of Bose.
J. in Eastern Investments Case.
No attempt has been made by the assessee to point out before the taxing authorities or even before the High Court by placing the necessary facts to justify such a claim.
On mere assumptions such a point cannot be allowed to be raised here for consideration.
In fact unless the loan is incurred for meeting the liability connected with the sources itself it would ordinarily be difficult to entertain the claims for deduction.
This appeal has to fail and the order of the High Court has to be affirmed.
We accordingly dismiss the appeal but leave the parties to bear their respective costs.
A.P.J. Appeal dismissed.
[/INST]The assessee, assessed as an individual, derived income from "other sources" in the shape of interest, dividends etc.
In the assessment year 1966 67 she claimed deduction of Rs.26,986 being interest paid on loans taken by her, under section 57(iii) of the Income Tax Act, 1961.
The income Tax Officer found that out of the loans real investment was Rs.1,250 only.
He disallowed the claim of Rs.10,275 on proportionate basis.
The Appellate Assistant Commissioner relying upon the ratio of the decision in Bai Bhuriben Lallubhai vs Commissioner of Income tax, Bombay North Cutch and Saurashtra, [1956 ITR (XXIX) 543] dismissed the appeal of the assessee.
Before the Tribunal the assessee contended: (1) that expenditure under the head of payment of income tax and wealth tax and annuity deposits should have been taken as revenue expenditure and the claim of interest in respect of such loans should have been admitted and (2) that the asses see instead of liquidating the investments which was return oriented, found it commercially expedient and viable to raise a loan instead of disturbing the investments and, therefore, the claim became admissible.
The Tribunal reject ing the contentions and dismissing the appeal observed that the loans were taken for meeting her personal obligation like payment of taxes and deposit of annuity and these had nothing to do with the business.
On reference, the High Court held that at the relevant time it was obligatory for the assessee to make the annuity deposit and the earning of interest through such deposit was merely incidental and that the portion of the loan was not intended to meet expenditure wholly and exclusively for the purpose of earning the income and.
therefore.
did not come under section 57(iii) of the Act.
1168 Dismissing the appeal of the assessee the Court.
HELD: 1.
Unless the claim comes within the purview of section 57(iii) of the Income Tax Act.
1961 it would not be admissi ble as a deduction.
[1170C] 2.
The test to apply is that the expenditure should be wholly and exclusively for the purpose of earning the in come.
[1172C] Eastern Investments Ltd. vs Commissioner of income tax, West Bengal, and Commissioner of Income tax, West Bengal vs RaJendra Prasad Moody. , followed.
In order that the claim for deduction could be sus tained, it was for the assessee to satisfy the Income Tax Officer that the loan, interest in respect of which is claimed as deduction, was laid out or expended wholly and exclusively for earning the income from out of which the deduction was claimed.
[1170F G] 4.
The Income Tax Authorities as also the High Court have clearly recorded a factual finding of facts that the expenditure in this case was to meet the personal liability of payment of income tax and wealth tax and annuity and that no part of the expenditure came within the purview ors.
57(ii) of the Act.
[1171H 1172A, D] 5.
This Court is inclined to agree with the High Court that so far as meeting the liability of income tax and wealth tax is concerned, it was indeed a personal one and payment thereof cannot at all be said to be expenditure laid out or expended wholly and exclusively for the purpose of earning income.
So far as annuity deposit is concerned.
the Tribunal and the High Court have come to the right conclu sion that the dominant purpose was not to earn income by way of interest but to meet the statutory liability of making the deposit.
[1172B C] 6.
Unless the loan is incurred for meeting the liability connected with the sources itself it would ordinarily be difficult to entertain the claims for deduction.
[1172F]
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<s>[INST] Summarize the judgementminal Appeal No. 123 of 1985.
From the Judgment and Order dated 12.11.84 of the Delhi High Court in State Criminal Appeal No. 71 of 1978.
R.K. Garg and Rajendra Prasad Singh for the Appellant.
233 N.N. Goswamy and Ashok Bhan for the Respondent.
ANAND, J.
This appeal by special leave, is directed against the judgment of the High Court of Delhi dated 12th of November 1984, setting aside an order of the Additional Sessions Judge New Delhi, acquitting the appellant of an offence under Section 302/203 IPC.
The prosecution case is that on the fateful night of 25th/26th July, 1976, the appellant and his wife, Usha Jain, went to sleep in the back verandah of their house situated at P 5, Green Park Extension, New Delhi while his brother M.P. Jain alongwith his wife Sharda and children went to sleep separately in their bed room in the same house.
Police Control Room was informed over the telephone by Sulekh Chand Jain at 4.55 A.M. that an incident had taken place at P 5, Green Park Extension and on receiving the telephone message, S.I. Mauji Ram made a record of it in the daily diary and passed on the information to the duty officer at police station Hauz Khas.
ASI Maha Singh was deputed to proceed to the spot for investigation of the case.
After reaching the spot, the said ASI Maha Singh informed the police station on telephone that a murder had taken place.
The information so provided was recorded by ASI Mangal Sen in the daily diary Whereupon SHO Harmit Singh immediately left for the spot alongwith SI Dalip Singh, SI Moti Singh, Constable Bhawani Dutt and Constable Randhir Singh.
The police party arrived at the spot at about 5.35 a.m. and took charge of the investigation.
The appellant was present near the dead body which had been covered by a Dhoti and on interrogation, the appellant informed the police party that his brother and family had retired for the night in their bed room at about 10.00 p.m. and he alongwith his wife had slept in the back verandah.
Before going to sleep, he had locked the collapsable door of the back verandah.
The wife of the appellant was wearing a gold chain on her neck, eartops in her ears and golden bangles on her wrists besides glass bangles.
At about 1.30 a.m., the appellant felt thirsty and asked his wife to give him water and after some time when he felt chilly, he went inside the room.
He slept in the room while his wife kept sleeping outside.
At about 3.45 a.m., the appellant got up to urinate and when he went outside the room, he found that his wife was lying on the cot with her face upwards but her clothes were in a loose condition and he was almost naked upto the thighs.
On going closer to 234 the cot, he found her tongue protruding and on touching her, he found her dead.
He noticed some scratches on her face and neck and also discovered that the golden chain which was on her neck and golden bangles were missing from her body.
According to the appellant, his wife had been murdered by somebody by strangulation while committing the theft of the golden chain and the bangles.
He started screaming and his brother, the brother 's wife as well as some neighbours came there.
Since, his telephone was found to be out of order, police was informed at his request by Sulekh Chand, another neighbour, from his telephone.
The parents of the deceased, living in Sonepat were also conveyed the tragic news on telephone through their neighbours.
The statement of the appellant which revealed a case of lurking house trespass, with a view to commit offence of theft and murder, was recorded as exhibit P5 and a case under Section 460 IPC was registered.
The statement of the appellant exhibit P5, was despatched by SHO Harmit Singh to the police station with his endorsement for registration of a case under Section 460 IPC.
Formal FIR was registered by ASI Mangal Sen at the police station and the same was received back by the SHO at the house of the appellant at about 6.45 a.m.
The crime team as also the dog squad were summoned.
Both the dogs of the dog squad were first let loose to pick up the smell and according to the ASI Ranbir Singh, in charge of the dog squad, the dogs after picking up the smell from the lock lying in the corner of the back courtyard and from the spot, went to the room where the appellant was sitting and each of the dogs pointed towards him by turn.
That raised a suspicion against the appellant.
According to the SHO, he then asked the appellant to remove his shirt and found that the appellant had injuries in the nature of bruises etc.
on the front part of his body, on the chest, as well as on his back.
Since the appellant had told the police that the bangles of his wife were identical to the bangles of Sharda, the wife of his brother M.P. Jain, who also is the sister of the deceased, the SHO took into possession four bangles from Sharda also for comparing the same in case the stolen property was recovered.
The appellant was thereafter taken for further interrogation to the police station.
Before proceeding to the police station., the SHO had effected recoveries of various articles including some hair, lying near the dead body on the cot.
The appellant had produced the key at the asking of the SHO, which purported to be the key of the lock which had been found lying in the back court yard and the same was taken into possession.
The lock was also taken into possession but it did not appear to have been 235 broken or tampered with.
The recovery of the key was witnessed amongst others by Kuldip Kaul PWl who was present in the crowd outside the home of the appellant.
The inquest proceedings were conducted by SI Moti Singh and the body was thereafter sent for postmortem examination.
At the police station, during interrogation the appellants was placed under arrest and in the presence of SI Dalip Singh PW6, Kuldip Kaul PWl and Harnaik Singh PW2, he made a disclosure statement, exhibit PC, to the effect that he had concealed the golden chain and the bangles in his bathroom and in pursuance of the disclosure statement, the appellant led the police party to the bathroom of his house and after removing the cover from the drain hole, took out the golden chain and the bangles and handed the same over to SHO Harmit Singh in presence of the witnesses.
Recovery memo, EX.PF was prepared and the golden chain and the bangles after being duly weighed were sealed separately and the seal was handed over to Kuldip Kaul PW1.
The appellant was sent for medical examination, after memo of his personal search EX.PE was prepared.
Dr. Dharam Pal PW15 found as many 18 injuries on the person of the appellant consisting of bruises and abrasions on the nose, chest, arm shoulder and on the umbilical region.
The injuries were stated to have been caused by blunt weapon.
The postmortem on the dead body of Usha Jain was conducted on 27.7.1976 at 9.00 a.m. by Dr. Bharat Singh PW 4 and according to the postmortem report EX.PL, all the injuries found on the person of the deceased were ante mortem and the same were possible by throttling the deceased and that the death of Usha Jain was caused by asphyxia resulting from throttling.
The deceased was carrying 7th month pregnancy at the time of her death.
After the disclosure statement was made by the appellant leading to the recovery of the ornaments and after noticing injuries on his person, the case which was originally registered under Section 460 IPC was converted, into one under Section 302/203 IPC.
The SHO during the course of investigation also took sample hair of the appellant and sent the same alongwith the hair recovered from the cot of the deceased to the Central Forensic Science Laboratory.
The nail clippings of the deceased were also sent for analysis to CFSL.
Site plan, EX.PO, was also prepared during the investigation.
After completion of the investigation, challan was filed against the appellant and he was sent up for trial for offences under Section 302/203 IPC in the court of Additional Sessions Judge, New Delhi.
236 There being no eye witness of the occurrence, the prosecution sought to establish the case against the appellant on the basis of circumstantial evidence.
The circumstances set up by the prosecution against the appel lant during the trial were (i) information to the police at 4.55 AM given by a neighbour and not the appellant; (ii) that information not specifically giving out that a murder had taken place and simply intimating happening of an incident; (iii) The accused having slept alone at night in the verandah with the deceased after having locked the collapsable door of that verandah from inside and that lock having been found in the corner of the back courtyard in the morning without being tampered with; (iv) The deceased and accused were last seen together, (v) The dogs of the Dog Squad having pointed out the accused after picking up scent from that lock; (vi) The ornaments which were stated to be on the person of the deceased while she was sleeping, and which were found missing when she was discovered dead having been recovered from the drain hole of the bath room attached to the bed room of the accused in consequence of and in pursuance of a disclousre statement made by the accused; (vii) injuries found on the person of the accused in the nature of abrasions, contusions and lastly; (viii) the accused having given false information to the police by means of hi s statement Ext.
P5" The learned Sessions Judge carefully analysed each of the circumstance and finally observed "On a resume of the analysis of prosecution evidence, and 237 on a very careful appraisal of all the facts and circumstances set up by the prosecution, I am of my earnestly considered view that the prosecution in this case has entirely failed to prove any of the circumstances set up against the accused, much less to establish the chain of circumstances, so as to bring out a nexus between the crime and the accused.
" The appellant was, therefore, acquitted of the offences under Section 302/203 IPC.
On an appeal by the State, a division bench of the High Court reversed the order of acquittal of the appellant.
The High Court held that the circumstances formed a chain and sequences so complete by themselves that one was left in no manner of doubt that the appellant and the appellant alone had committed the crime.
The appeal was accepted and the order of acquittal was set aside.
The appellant was sentenced to undergo rigorous imprisonment for life under Section 302 IPC and also to undergo rigorous imprisonment for a period of one year under Section 203 IPC.
Both the sentences were directed to run concurrently.
Appearing for the appellant, Mr. R.K. Garg, the learned senior counsel submitted that the approach of the High Court was totally erroneous and that a well considered and well reasoned judgment of the Trial Court was upset by the High Court by drawing inferences which were not available from the record and by ignoring material discrepancies and infirmities in the prosecution evidence which not only did not establish various circumstances but which also showed that the chain of circumstantial evidence was wholly incomplete.
Learned counsel for the appellant submitted that the appellant had been roped in on the basis of misguided suspicion and that the circumstances relied upon by the prosecution were not of any conclusive nature and they did not exclude the hypothesis, other than that of the guilt of the appellant.
It was emphasised that the inves tigating officer had created false clues and suppressed material which went against the prosecuting version and supported the defence version.
He argued that the High Court should have drawn adverse inference against the prosecution for not producing the first informant and withholding the evidence of the father of the deceased.
Mr. N.N. Goswami, learned senior counsel assisted by Mr. Ashok 238 Bhan, advocate, on the other hand submitted that some of the circumstances like the pointing out of the appellant by the dogs of the Dog Squad, after picking up the scent from the place of occurence; the disclosure statement and the recovery of ornaments as a consequence thereof at the instance of appellant and the presence of injuries on the person of appellant, were of such a conclusive and clinching nature that they left no doubt that the appellant had committed the crime.
It was submitted that the appellant had made attempt to mislead the investigating officer by giving a false version with a view to screen himself.
According to the learned counsel the established circumstance could only lead to the hypothesis consistent with the guilt of the appellant and not with his innocence.
We shall now consider various circumstances with a view to determine whether the circumstances alleged against the appellant have been established and the chain of evidence is so complete as to lead to no other hypothesis except the one consistent with the guilt of the accused.
There is no motive established in this case by the prosecution for the appellant to commit murder of his wife and the evidence of Tara Chand father of the deceased as welt as the sister of the deceased and the tenants living in, the same house disclosed that the relations between the husband and wife were cordial.
In a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case.
The absence of motive, however, puts the court on its guard to scrutinise the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof Since, the disclosure statement and the consequent recovery pursuant thereto of the ornaments belonging to the deceased has been considered to be one of the most important piece of circumstantial evidence in the case not only by the High Court but has also before us by the learned counsel appearing for the State, we shall first consider that circumstance.
This circumstance is indeed of such an incriminating nature that if found to have been established by reliable and trustworthy evidence, it would go a long way to furnish proof of the guilt of the appellant and connect him with the crime and on the other hand, if the evidence in support of that circumstance is found to be not reliable, the entire chain of circumstantial evidence will snap so badly as to affect the credibility of the prosecution case as a whole.
239 According to the prosecution after the appellant had been taken to the police station by the investigating officer he was interrogated interrogated after being placed under arrest.
He voluntarily made a disclosure statement EX.PC.
The disclosure statement was recorded by the SHO and has been attested by Kuldip Kaul PW 1, SI Dalip Singh PW 6 and Harnaik Singh PW2.
Pursuant to the disclosure statement, the appellant is alleged to have led the police party to the recovery of the ornaments from a drain hole in his bathroom.
The recovery memo EX.PF was prepared at the spot and was attested by SI Dalip Singh PW 6, Kuldip Kaul PW 1 and Hirnaik Singh PW 2 besides the Investigating Officer.
We shall, therefore, first analyse the evidence of the witnesses of the disclosure statement and the recovery memo.
Inspector Harmit Singh, PW 19, SHO, while deposing about the disclosure statement and the consequent recovery of the ornaments at the pointing out by the appellant, stated that he interrogated the appellant in presence of Dalip Singh, Kuldip Kaul and Harnaik Singh PWs at the police station at about 1.45 p.m. and in their presence the appellant made the disclosure statement exhibit PC and then led the party to his house and pointing out the drain hole in the bath room, the appellant took out from that drain hole, three golden bangles and one golden chain, which were weighed separately and while golden bangles were put in one packet the golden chain was put in another packet and the seal used to seal both the packets was handed over to Kuldip Kaul PWI.
The recovery memo EX.PF was prepared at the spot which was signed by the witnesses then and there at about 2 or 2.30 p.m.
In his cross examination, the Investigating Officer denied the suggestion that the bangles and the chain were recovered from underneath a slab in the service lane in the presence of the appellant and Jagminder Dass Jain and a memo had been prepared which was signed by them.
He also stated that he did not call any goldsmith to weigh the ornaments because he had taken with him the measure and the scale.
He then asserted that "Kuldip Kaul did not come back with me to the police station when I came back in the evening after recoveries of the ornaments etc.
had been effected at the spot.
I recorded statement of Kuldip Kaul at the spot after recoveries.
That was a complete statement of his and I recorded only one statement of his on that day.
Kuldip Kaul left from the spot and we were still there when he left." Regarding Harnaik Singh PW2, the I.O. stated "I had gone out to 240 look for another witness and I found at that time Harnaik Singh reversing his taxi in the compound of the police station and then I summoned him.
He had told me that he had dropped a passenger and was taking out his taxi.
I did not see passenger going inside.
There are 60/70 quarters at the back of the police station and that passengers might have gone to any of those quarters.
The disclosure statement was made by the accused in his presence.
I had read out the papers to Harnaik Singh before getting his signature.
In fact, it was written in his presence and whatever were dictated by the accused was within his healing.
It is incorrect to suggest that disclosure statement was already written and I got signatures of Harnaik Singh without explaining to him the document and assuring him to sign on my trust.
" The witness also asserted that he had seen Harnaik Singh for the first time only at about 2 or 2.30 p.m. outside the police station while reversing the taxi and did not know him from before.
Let us now examine as to what the other witnesses have to say in this regard.
Kuldip Kaul PW1, while admitting that he was present outside the house of the appellant in the morning at about 6.30 a.m. when the police party had reached there and had offered himself to join the investigation, went on to say that after the SHO had lifted the shirt of the appellant and found 15 20 marks of scratches on the chest of the appellant, they all came to the police station along with the appellant.
He added that while they were sitting at the police station, Harnaik Singh PW2 also came there along with SHO Harmit Singh and after some initial hesitation, the appellant disclosed that he had kept one golden chain and three bangles which his wife was wearing, in the drain hole of the bath room of his house and he could show the same to the police and get them recovered.
He deposed that disclosure statement EX.PC was prepared at the police station and was signed by him as well as by the other witnesses present there.
Thereafter, the appellant was arrested and he led the police party to his house where he pointed out the drain hole in the bath room and after removing the cover of the drain hole, the appellant took out from inside the drain hole, a golden chain and three golden bangles and handed over the same to SHO Harmit Singh.
Memo of recovery EX.PF was prepared and was signed by the witnesses.
With a view to assert his independence and that he had no earlier connection with the I.O., he stated "I came to know SHO Harmit Singh since March, 1976, when I organised a function of Youth Congress and had contacted the SHO for arrangements for the said function.
I have, never gone to the police station in any other connection or regarding public 241 grievances.
I have not organised any other function in the area except the one stated above.
Regarding the signing of the recovery memo at the house of the appellant and his leaving for his house from there as was deposed to by the Investigating Officer, Kuldip Kaul PWl stated "I had come back with the police to P.S. after the recovery of the ornaments and there at about 3.30 p.m. my, statement was recorded by the police and I came back home at about 4 p.m. " Harnaik Singh PW2 giving his version regarding the disclosure statement and the consequent recovery stated "About 4 1/2 or 5 months back at about 2/2.30 p.m.
I had taken a passenger in my taxi to the quarters of P.S. Hauz Khas.
When I was coming back after dropping the passenger one police officer, Sardarji, who was standing at the gate of the P.S. called me, and took me inside the P.S.
There is one room, besides the police were one Mr. Kaul PWl and Surinder Pal Jain, accused present in court.
Then in the room that Sardarji police officer took up one paper which had been prepared already and asked me to sign, saying that they have to conduct some inquiry in the case.
Then that Sardarji told me to accompany the police party to Green Park.
Then we went there besides the police party and myself PWl and the accused were also there.
On reaching the house in Green Park the accused led the police party to the bath room and I also followed them in to the both room.
Then the Sardarji took out there bangles and one gold chain from the gutter of the bath room.
The Sardarji took those three bangles from the gutter on being told by the accused." He asserted that he did not at all know the Sardarji police officer prior to that date and that.
he had gone to the police station for the first time on that day.
During the cross examination he admitted that "The contents of memos EX.PC and EX.PF were not read out to me but I was told by the police that the weight of things recovered and the recovery was being written in those papers." ASI Maha Singh, PW5, who had arrived at the spot at the earliest and had sent information to his senior officers including SHO Harmit Singh and had kept a guard at the spot.
During the cross examination admitted that "Kuldip Kaul and Harnaik Singh witnesses had come there before 7 a.m." ST Dalip Singh PW6, who had also accompanied the SHO to the house of the appellant at about 6.30 a.m. stated "when we reached Kuldip Kaul and Hamaik Singh witnesses were present.
ASI Maha Singh was already 242 there.
" The witness also deposed about the interrogation of the appellant and the recording of the disclosure statement at the police station in his presence and the subsequent recovery of the ornaments and the preparation of the recovery memo PF in the presence of Kuldip Kaul and Harnaik Singh PWs.
Contrary to what Harnaik Singh PW said, this witness deposed "the accused himself took out three bangles and one golden chain front the main hole and handed them over to the SHO.
" The witness during the cross examination stated "The ornaments were weighed by some goldsmith who was called there by the SHO.
I do not know whether that goldsmith also signed the possession memo or not. ' The above is the entire prosecution evidence relating to the making of the alleged disclsoure statement by the appellant and the consequent recovery under Section 27 of the Evidence Act at his instance.
According to the appellant, however, he had made no disclosure statement nor led the police party to the recovery of the ornaments as alleged.
According to the defence version, the missing ornaments had in fact been recovered by the police party around 11 a.m. during search from the service lane, from underneath a slab, near the boundary wall and at that time the appellant and Jagminder Dass Jain were also present.
This defence version is supported by the evidence of DW2, Tara Chand, father of the deceased.
The presence of this witness is admitted at the spot by the Investigating team, as was natural being the father of the deceased.
His testimony assumes significance as in the normal course of events, he would be the last person to screen the real offender who murdered his daughter.
Tara Chand DW2 stated that the police had interrogated him and he had told the I.O. that the appellant and the deceased had good relations with each other and that he had never received any complaint of any dispute or difference between them from his daughter.
That he had also married of his other daughter with the brother of the appellant, M.P. Jain and that both the sisters alongwith their husbands were living together in the same house.
Deposing about the sequence of events at the house of the appellant, the witness stated "Then at about 10.30 a.m. the police took into possession four golden bangles from Sharda but I cannot say as to from where she had produced them, whether she was wearing them or she had brought them from the house.
I had seen her just producing them.
She had handed over those bangles to the same Sardarji police officer who had talked to me and at that time we were in the drawing room.
The police 243 had been told that the bangles which Usha was wearing and which were missing were of the same type which were with Sharda and there upon they conducted search for the articles in and around the house, with the bangles in hand They went out towards the back side.
Persons who were inside the house and also S.P. Jain accused (had joined the search party).
I came to know that three missing bangles and one chain had been found out from underneath a slab at the back of the house.
I came to know at about 11.30 a.m. that these things had been recovered and after about 1/2 hour of that the police took in jeep M.P. Jain, S.P. Jain and Sharda Jain to the police station.
Police told me that they were taking all the three for interrogation." During the cross examination he asserted, 'After the police had taken Sharda 's four bangles in hand and they went around looking for the stolen bangles I was in the varandah by the side of the dead body and kept on observing the scene and I saw that after sometime the same sub inspector who had the four bangles in hand was coming from outside from the back side and had three bangles and one chain in the other hand.
Some 5/7 persons from the public who were already inside the house had gone outside with the police and they also came back with the police after recovery of the ornaments.
I learnt from them that those ornaments had been found front underneath a slab and sometime after myself went out and saw that spot.
The three bangles and chain were loose and were not found in any cloth." He categorically denied the suggestion that the appellant had led the police party to the bath room on that day and had got recovered form the drain hole of the bath room, the three bangles and the golden chain.
Shri Jagminder Dass Jain appeared as DW12.
He leves in the same locality as the appellant and had gone to the house of the appellant soon after 6 a.m. on learning that some murder had taken place.
Deposing about the recovery of ornaments, he stated that the SHO after taking into possession the bangles from Sharda went outside towards the back lane and the witness accompanied the SHO and the crime team along with some others.
He stated that during the course of the search of the back lane and from underneath a slab, one gold chain and three golden bangles were recovered.
The recovered bangles were compared with the other which had been earlier produced by Sharda and a memo of the recovery was prepared by the police and was signed by the witness as well as the appellant.
The learned Sessions Judge carefully considered the evidence led by the prosecution with regard to the disclosure statement and the recovery 244 of ornaments.
She found the evidence of Harnaik Singh PW2, who according to DW11 Sunder Lal constable of police station Defence Colonly, had been earlier also cited as a witness for the prosecution in a case investigated by Harmit Singh the then Sub inspector of police and the present Investigating Officer was not reliable and that the Investigating Officer had not told the truth when he had deposed that he did not know Harnaik Singh earlier.
That Harnaik Singh had on his own showing signed the disclosure statement after it had already been written and that the appellant bad not made any disclosure statement in the presence of Harnaik Singh PW2, who had been introduced being a convenient witness.
The learned Sessions Judge also found the evidence of PWl Kuldip Kaul as not reliable or trustworthy and disbelieved his testimony by giving cogent reasons after properly appreciating the evidence led by the prosecution.
She found the defence version with regard to the recovery as more probable and opined that the investigating officer had created false clues and fabricated false evidence.
The learned Sessions Judge observed "I, therefore, cannot bring myself at all to accept the prosecution case about any disclosure having been made by the accused or having led to recovery of missing ornaments in pursuance to this disclosure, and I am con strained to say that the I.O. has made unabashed attempt to fabricate false evidence to bring on record incriminating evidence against the accused whom he had tied down for the offence u/s 302 IPC and went to the extent of introducing false witnesses, preparing fabricated recoveries, replacing them by original recoveries." The High Court on the other hand did not deal with the various discrepancies and contradictions appearing in the prosecution evidence relating to the making of the disclosure statement and the recovery of the ornaments.
The High Court placed reliance on the testimony of Kuldip Kaul PWl and Harnaik Singh PW2 to hold that the disclosure statement and the recovery had been made in the manner suggested by the prosecution.
In our opinion, the High Court did not properly appreciate the prosection evidence while reversing the well considered judgment of the learned Sessions Judge.
245 On our independent appraisal of the evidence we find that the prosecution evidence relating to the disclosure statement and the recovery of ornaments is not only discrepent and contradictory but also suffers from glaring infirmities and improbabilities rendering it unsafe to rely upon the same.
There is contradiction between the evidence of Kuldip Kaul PW1` and the I.O. as to the place where Kuldip Kaul signed the recovery memo.
According to the 1.0.
it was signed at the spot while according to Kuldip Kaul PW1, he had returned to the police station and there signed the recovery memo.
Again, while Kuldip Kaul attempted to show that he had met the I.O. just once and did not know him earlier, the I.O. has given a direct lie to it.
After carefully analysing the evidence, we find Kuldip Kaul PWl was a convenient witness and his evidence does not appear to be trustworthy.
Same is our opinion about Harnaik Singh PW2.
Whereas both Harnaik Singh PW2 and the I.O. want the Court to believe that they did not know each other earlier and that I.O. had seen Harnaik Singh for the first time on that day only at the police station, there is abundant material on the record to show only that Harnaik Singh had earlier been cited as witness by the same I.O. while posted as Sub Inspector at another police station, Harnaik Singh PW2 was also present outside the house of the appellant alongwith Kuldip Kaul PWl as early as on 6.30 AM on that day.
Harnaik Singh PW2 also exposed his unreliability when he admitted during the cross examination that the disclosure statement had not been made by the appellant in his presence at the police station but that he had signed a statement which had already been prepared, thus, giving a lie not only to Kuldip Kaul PWI but also to the I.O. who have deposed to the contrary.
As regards the recovery of ornaments also, there is a very serious infirmity which emerges from the testimony of Harnaik Singh PW2.
Contrary to what the I.O. and the other witnesses stated, Harnaik Singh PW2 deposed that the ornaments were taken out by, the Sardarji I. O. from the drain hole and not by the appellant.
This probabilises the defence version that the ornaments had been recovered during the search and were with the I.O. when the ritual of the recovery under Section 27 of the Evidence Act was performed.
The contradictions in the evidence of the I.O. and S.I. Dalip Singh PW6 as to who had weighed the ornaments after their alleged recovery also casts doubt on the correctness of the prosecution story and the bonafides of the investigation.
246 The learned Judges of the High Court noticed the evidence of Harnaik Singh as regards the manner of his signing the disclosure statement and the alleged recovery of ornaments and observed : "Harnaik Singh PW2 even though cited as a witness of the disclosure statement, does not subscribe to it and obviously, as stated by Harmit Singh, he was only brought to the police station after the first interrogation was conducted.
In any event we think that a person like Harnaik Singh PW2 who is not prepared to subscribe to a part of the prosecution case to which he was not a witness could not but be a truthful witness and there is absolutely no reason not to believe his version that these ornaments were recovered at the pointing out of the accused and were drawn from the drain hole by the accused himself.
" We are unable to appreciate this approach of the High Court.
The Court seems to have made a virtue out of a vice.
While deposing about the recovery of the ornaments from the drain hole of the bath room Harnaik Singh PW2 belied the entire prosecution case when he stated that after the appellant had led the police party to the bath room "the Sardarji took out three bangles and one golden chain from the gutter of the bath room".
The High Court did not advert to this aspect of the evidence at all.
Kuldip Kaul PWl who was also disbelieved by the learned Sessions Judge and in our opinion rightly, had also exposed the extent of falsehood indulged into by the investigating officer with regard to the time and place where the witness attested the memo of recovery of the ornaments but the High Court did not deal with the said circumstance also in its proper perspective and on the other hand unjustifiably criticised the Sessions Judge for her adverse comments on the veracity of the prosecution case.
Obviously, the investigating officer had associated Kuldip Kaul PWI not only because he was known to the SHO but also because he was a convenient witness who was prepared to sign the recovery memo at the police station at 3.30 PM, after the police party had returned from the house of the 'appellant.
The glaring discrepancies and contradictions noticed above have rendered the evidence of Kuldip Kaul PW1, Harnaik Singh PW2 and the Investigation Officer Harmit Singh PW19 untrustworthy and unreliable.
On the other hand, we find that the defence version regarding the recovery of ornaments is more probable and is supported by independent witnesses including Tara Chand 247 DW2 father of the deceased whom the I.O. did not produce as a prosecution witness.
Despite searching cross examination nothing was elicited to created any doubt on the veracity of Tara Chand DW2, the father of the deceased, who, as already stated, would be the last person to screen the real murderer of his daughter.
The evidence of Tara Chand DW2 has impressed us and we find that the version given by him, in the facts and circumstances of the case, was more probable.
In view of the serious discrepancies contradictions and the attempt of the Investigating Officer Harmit Singh to create false clues and fabricate evidence, we are of the opinion that the learned Sessions Judge was perfectly justified in rejecting the prosecution evidence relating to the disclosure statement exhibit PC and the consequent recovery of the ornaments.
The prosecution has failed to establish that the appellant did make the disclosure statement as alleged by the prosecution or led to the recovery of the ornaments belonging to the deceased in the manner suggested by the prosecution.
This piece of circumstantial evidence, therefore, has not at all been established, much less conclusively.
In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and those circumstances must be conclusive in nature.
Moreover, the established facts should be consistent only with the hypothesis of the guilt of the accused alone and totally inconsistent with his innocence.
Though with the ruling out of the recovery of the ornaments as circumstances relating to the been established conclusively, the chain of the circumstantial evidence snaps badly, we find that there are some other circumstances also in the prosecution case which militate against its correctness.
Admittedly, the nail clippings of the nails of the deceased had been taken by the police.
There was also recovery of the hair from near the cot where the dead body was lying and the romoval of the hair from the scalp of the appellant by the I.O. for the purpose of their comparison.
The report of the chemical examiner has not connected the hair recovered from the cot with those of the appellant.
There is no material on the record either to show that the nail clipping had any blood, which could have tallied with the blood group of the appellant.
Thus, both the/ nail clippings and the hair have failed to connect the appellant with the crime.
248 The information about the incident was given by Sulekh Chand Jain DW13 an immediate neighbour, of the decased who informed the police at 4.55 AM on the request of the appellant about the occurrence.
Sulekh Chand Jain was not examined by the prosecution and was instead examined by the defence and has appeared as DW13.
He deposed that he had conveyed the information, as given to him by the appellant and other inmates of that house, regarding the murder of the deceased to Moti Ram PW11 at police station Hauz Khas on telephone.
The record of the information conveyed by him at the police station was, however, cryptic and no explanation has been furnished as to why the recorded report was so cryptic.
In answer to a question in the cross examination, the witness naturally expressed his ignorance as to why the report had been recorded in the manner in which it was recorded.
That was natural.
This explanation was required to be furnished by the police witnesses rather than DW13.
Though he was subjected to incisive cross examination, nothing emerged from the evidence of DW13 which may show that he had not conveyed the information of murder having been committed to the police.
Under these circumstances, the argument of Mr. Garg that the report was designedly left vague to enable the investigating agency to fill in the blanks latter cannot be dismissed as wholly unplausible particularly when we have noticed the conduct of the Investigating Officer during the investigation.
The possiblility that the entire case was built up after the dogs of the dog squad pointed towards the appellant cannot be ruled out.
Since, the appellant had slept in the verandah near the cot where the dead body of his wife was found; had locked the collapsable door with the recovered lock before going to sleep and had himself been close to the dead body before the police came, the picking up of the smell by the dogs and pointing towards the accused could not be said to be a circumstance which could exclude the possibility of guilt of any person other than that of the appellant or be compatible only with hypothesis of guilt of the appellant.
The pointing out by the dogs could as well lead to a misguided suspicion that the appellant had committed the crime.
The explanation of the appellant regarding the injuries on his person as having been caused by the police is also quite plausible because according to the father of the deceased, the sister of the deceased, the tenants of the house and other neighbours who had reached the spot, the appellant was wearing only a vest and the pyjama and no shirt and there were no marks of injuries on his body before he was 249 taken to the police.
station.
The prosecution case regarding the presence of injuries on the person of the deceased also, therefore, is quite doubtful.
On an independent appraisal of the evidence on the record, we have therefore unhesitatingly come to the conclusion that the learned Sessions Judge was perfectly justified in acquitting the appellant of all the charges and the reasoning given and the findings recorded by her are sound, cogent and reasonable.
The High Court was not justified to set aside those findings on surmises and conjectures.
The finding of guilt recorded against the appellant by the High Court is not sustainable in law and we, agree with the learned Sessions Judge that the prosecution has not established the case against the appellant beyond a reasonable doubt.
We, accordingly, set aside the judgment of the High Court convicting the appellant for the offence under Section 302/203 IPC.
The appeal is allowed and the appellant acquitted of both the charges.
The appellant is on bail, his bail bonds shall stand discharged.
N.V.K. Appeal allowed.
[/INST]Six accused persons were arrayed by the investigating agency for offences punishable under Sections 302, 324, 323, 341, 148 read with Section 149 IPC, for an occurrence that took place on 24th December, 1986 in which one Suku succumbed to injuries as a result of the assault during the occurrence.
They were put on trial, and the prosecution sought to establish its case by examining as many as six eye witnesses besides other evidence, documentary and oral.
According to the prosecution case, all the six accused persons were armed with weapons like chopper, iron rod, knife, cycle chain and torches and that the accused had held PW.2 George and while the first accused kicked him, the third accused inflicted injuries on him with a cycle chain.
So far as Suku deceased was concerned, all the accused except the first accused caused him injuries with a torch, a cycle chain and a knife.
The first accused was alleged to have caught hold of Suku by the collar and inflicted injuries on his hands, arms and legs with a chopper.
The assault took place in front of an arrack shop.
It was alleged that enmity between the two groups on account of suspicion of information being passed on to the Excise Officials, regarding illicit distillation was the cause of the occurrence, but no evidence was led in support of this allegation and no motive for commission of the crime was established at the trial.
85 At the trial, four eye witnesses PW3, P.W. 6, PW.7, the salesman and his assistant in the arrack shop and PW.8 turned hostile and did not support the prosecution case.
The prosecution case was sought to be proved by the ocular testimony of PW.4 and PW.5 both aged about 13 years, at the time of the occurrence and other evidence.
Both these eye witnesses supported their statements recorded under section 161 Cr.
P.C. during their testimony in Court.
The trial court on the basis of prosecution evidence found accused No. 1, Subran, guilty of an offence punishable under Section 302 IPC and sentenced him to suffer rigorous imprisonment for life.
Accused Nos. 2 to 6, namely, Rajan, Preman, Viswan, Sura and Shajan, were found guilty of an offence under Section 326/149 IPC and each one of them was sentenced to undergo rigorous imprisonment for three years Besides, accused 1 to 4 were convicted for an offence under Section 148 and sentenced to suffer rigorous imprisonment for one year.
All the accused were also convicted for offences under Sections 14, 341, 323,324 read with Section 149 IPC but no separate sentences were awarded on any of those counts.
On appeal to the High Court, the conviction and sentence awarded to accused 1 to 3 and 5 were confirmed, while accused 4 and 6 were acquitted and the conviction and sentence recorded against them by the Sessions Judge was set aside.
Ile participation of the 6th accused and the role assigned to him by the prosecution was doubted by the Judges of the High Court and he was given the benefit of doubt and acquitted.
Similarly, the High Court disbelieved the role assigned to accused No. 4 and doubted his participation in the commission of the crime. ]Me accused appealed to this Court by Special Leave.
After preliminary hearing it was ordered that the appeal be heard on the limited question regarding the nature of the offence and the quantum of the sentence only.
On the question : Whether after the acquittal of the two accused, could the High Court Convict appellant No. 1 for the substantive offence under Section 302 IPC an offence with which he had not been charged, and appellants 2 to 4 for an offence under section 326/149 IPC, Partially allowing the appeal, the Court, HELD: 1.
A combined reading of Section 141 and Section 149 IPC 86 show that an assembly of less than five members is not an unlawful assembly within the meaning of Section 141 and cannot, therefore, form the basis for conviction for an offence with the aid of Section 149 IPC.
[92F] 2.
The existence of an unlawful assembly is a necessary postulate for invoking Section 149 IPC.
Where the existence of such an unlawful assembly is not proved, the conviction with the aid of Sections 149 IPC cannot be recorded or sustained.
The failure of the prosecution to show that the assembly was unlawful must necessarily result in the failure of the charge under section 149 )PC.
[92H,93A] 3.
A person charged for an offence under Section 302 IPC read with Section 149 cannot be convicted of the substantive offence under Section 302 IPC without a specific charge having been framed against him as envisaged by law.
Conviction for the substantive offence in such a case is unjustified because an accused might be misled in his defence by the absence of the charge for the substantive offence under Section 302 IPC.
[93D] 4.
The conviction of appellants 2 to 4 for an offence under Section 326/149 IPC cannot be sustained and the same would be the position with regard to the conviction of all the appellants for other offences with the aid of Section 149 IPC also.
[93B] 5.
The High Court failed to draw the distinction between an offence under clause (b) and (c) of Section 299 IPC and the one failing under clause (3) of Section 300 IPC.
[93G] 6, The effect of the acquittal of the two accused persons by the High Court and without the High Court finding that some other known or unknown persons were also involved in the assault, would be that for all intent and purposes the two acquitted accused persons were not members of the unlawful assembly.
Thus, only four accused could be said to have been the members of the assembly but such an assembly which comprises of less than five members is not an unlawful assembly within the meaning of Section 141 IPC.
[92G] 7.
Appellant No. 1 Subran not having been charged for the substantive offence of murder under Section 302 IPC, even the trial court, which tried the six accused persons, was not justified in recording a conviction against him for the substantive offence of murder punishable under Sec 87 tion 302 IPC after framing a charge against him for the offence under Section 302 read with Section 149 IPC only.
[93C] 8.
Appellant No. 1, Subran, was never called upon to meet a charge under Section 302 IPC simplicitor and, therefore, in defending himself, he can not be said to have been called upon to meet that charge and he could very well have considered it unnecessary to concentrate on that part of the prosecution case during the cross examination of the prosecution witnesses.
Therefore, the conviction of the appellant No. 1 for an offence under Section 302 was not permissible.
[93E] 9.
The intention to cause murder of Suku deceased, could not be attributed to appellant No. 1 and the medical evidence also shows that the injuries attributed to him were not sufficient in the ordinary course of nature to cause the death of the deceased.
The conviction of appellant No. 1 for the substantive offence under Section 302 IPC is therefore unwarranted and cannot be sustained.
That Suku deceased died as a result of injuries inflicted on him by all the four appellants is not a matter which is in doubt.
From the ocular evidence read with the medical evidence, it stands established that the injuries on the deceased had been caused by all the four appellants and that the death of Suku had occurred due to the receipt of multiple injuries.
[93H, 94A B] 10.
On a consideration of the circumstances of the case, the type of weapons with which the accused were armed and the nature and seat of the injuries, it is not possible to hold that all the four appellants had shared the common intention of causing such bodily injuries on the deceased as were likely to cause the death of Suku or were sufficient in the ordinary course of nature to cause his death.
The appellants would, therefore be liable for the offence committed individually by each one of them.
[94D E] 11.
The case of appellant No. 1 therefore, falls within Section 299 I PC punishable under Section 304 Part 1 [PC.
He is accordingly, convicted for the said offence and sentenced to suffer rigorous imprisonment for a period of seven years and to pay a fine of Rs. 2,000 and in default of payment suffer further rigorous imprisonment for one year.
Fine if realised to be paid to the heirs of the deceased.
[94G H] 12 (a) With regard to the three other appellants their conviction for 88 an offence under Section 326 with the aid of Section 149 is not sustainable in law, it is accordingly set aside and they are convicted under Section 326/149 IPC.
They would be responsible for their individual acts.
The injuries caused by appellants 2 and 3 were with a torch, iron rod and a cycle chain.
None of the injuries caused by them according to the post mortem report were on any vital part of the body, though some of the injuries caused by blunt weapons were grievous in nature.
Each of them are convicted for an offence under Section 325 IPC and sentenced to suffer rigorous imprisonment for two years each.
[95B C] 12 (b) Appellant No. 4 caused grievous injuries to the deceased with a knife, the offence would therefore, fall under Section 326 IPC.
He is therefore convicted for the said offence and sentenced to suffer rigorous imprisonment for a period of three years and to pay a fine of Rs. 500/ and in default of payment to suffer rigorous imprisonment for a period of three months.
The fine, if realised shall be paid to the heirs of the deceased.
[95D] 12 (c) The conviction of all the appellants for the offence under Section 324 as recorded by the High Court as also for the other offences are maintained but without the aid of Section 149 IPC.
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<s>[INST] Summarize the judgementAppeals Nos.
148 to 150 of 1960.
Appeals by special leave from the judgment and order dated October 31, 1956, of the former Nagpur High Court in Misc.
Civil Case No. 184 of 1953.
K. N. Rajagopala Sastri and D. Gupta, for the appellants.
J. M. Phakar, section N. Andley, J. B. Dadachanji and Bameshwar Nath, for the respondents.
March 7.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
These appeals, by special leave, have been filed by the Commissioner of Income tax, Madhya Pradesh, against the assessee, an individual, by name Seth Khushal Chand Daga.
The assessee was a partner in a firm, Messrs. R. B. Bansilal Abirchand of Nagpur.
In the year of account ending Diwali, 1941, he received his share of assets and property from this firm, and started business of his own.
In the same year, his sources of income were speculation, allowance from Government as treasurer, house property and dividends.
The assessee had received some profits from his share in an unregistered firm against which were set off his losses in his individual business, and the Income tax Officer, who made the assessment, determined the loss to be carried forward, at Rs. 53,840.
The assessee appealed against the assessment, but did not question the loss which had been determined.
For the year, 1942 43, the assessee claimed to reopen the question of the loss to be carried forward, stating that it was Rs. 2,11,760.
This contention was not accepted by the Department, and on appeal, by the Tribunal.
The contention was, however, raised again by him in the assessments for the years, 194849 and 1949 50.
In these years, he had profits from 188 his share in the unregistered firm, Rs. 1,82,773 and Rs. 1,39,922 respectively, against which were set off his losses in his individual business, Rs. 1,18,913 and Rs. 60,589 respectively.
The contention of the assessee was that the profits which he had derived.
from the unregistered firm could not be set off against the loss in his individual business, as the profits of the unregistered firm had borne tax not in his hands but in those of the firm.
This contention was rejected by the Department; but on appeal to the Tribunal, it was accepted.
On the Tribunal being moved to make a reference, it referred four questions.
Two of those questions dealt with matters also arising out of these assessments, but they have not been mentioned by us in this judgment.
The two questions pertaining to these appeals were: "(1) Whether the assessee was competent in law to raise a question with regard to the determination of loss for the assessment year 1941 42 as finally determined in appeal, in the course of proceedings for the assessment year 1942 43 when the loss brought forward from 1941 42 was being set off ? (2) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the loss suffered by the assessee from his personal business (including his share of . loss from another firm) cannot be set off under Section 24(1) against his taxed share income from an unregistered firm?" These questions were answered by the High Court against the Commissioner, who has now appealed, with special leave.
It was conceded by the learned counsel for the Commissioner that the second question has now been decided by this Court in Seth Jamnadas Daga vs The Commissioner of Income Tax (1), and that the answer must be against the Department.
That portion of the case was thus not argued.
As regards the first question, the only contention raised was that the loss which had been determined and ordered to be carried forward must be deemed to (1) ; 189 have become final, because no appeal was filed against that determination.
But it appears that the procedure laid down by a. 24(3) under which the Income tax Officer has to notify to the assessee by order in writing the amount of the loss as computed by him for the purposes of that section was not followed.
No doubt, under section 30 an appeal lies, if the assessee objects to the amount of loss computed and notified under section 24; but inasmuch as the Income tax Officer had not notified the loss computed by him by order in writing, an appeal could not be taken on that point.
In our opinion, the assessee was, therefore, entitled to have the loss re determined in a subsequent year.
Learned counsel for the Commissioner stated that the Department was not very anxious for the decision, because this particular assessee has had only losses in the years following, and no loss would be occasioned to the Revenue, if the losses brought forward be redetermined.
But that is a matter, with which we are not concerned.
In our opinion, the judgment of the High Court impugned before us was correct in the circumstances of the case.
The appeals fail, and are dismissed with costs.
One hearing fee.
Appeals dismissed.
[/INST]The appellant had two money claims against the Maharaja of Mayurbhanj State.
From January 1, 1949, the State merged with the Province of Orissa.
Clause 9 of the Administration of Mayurbhanj State Order, 1949, promulgated by the Government of Orissa, provided for the issuing of a notification for calling upon all persons having pecuniary claims against the Maharaja to notify the same to an officer authorised in that behalf.
After issue of the notification the appellant preferred his two claims before the Claims Officer.
The Claims Officer made a report substantially accepting the claims.
This report was submitted to the Member (third), Board of Revenue.
Without giving the appel lant any hearing the claims were rejected on the ground that they were barred by limitation.
The appellant applied for a review and submitted the documents on which he relied but again without giving the appellant a hearing the Board of Revenue declined to review the matter.
The appellant contended 206 that there was a breach of the principles of natural justice in the Board of Revenue deciding the matter without giving the appellant a proper hearing.
The respondent contended that the rejection of the claims was an act of State, that the new Sovereign State could not be compelled by the courts to accept the liability of the old Ruler, that though the new Sovereign State might make such enquiry as it chose it was not compelled to give a hearing to the appellant.
The appellant replied that the act of State was over when the claims were invited and accepted by the Claims Officer.
Held, that the rejection of the claims was an act of State and could not be challenged.
Unless the new Sovereign, either expressly or impliedly, admitted the claims, the municipal courts had no jurisdiction in the matter.
The act of State did not come to an end when Government allowed the claims to be preferred or the Claims Officer made his report.
The enquiry was for the benefit of the State and not for conferring rights on the claimants.
Till there was an acceptance of the claims by the Government or some officer who could be said to bind the Government, the act of State was still open.
Dalmia,Dadri Cement Co. Ltd. vs Commissioner of Income tax, [1959] S.C.R 729 State of Saurashtra vs Mmemon Haji Ismail Haji, ; and Vaje Singh ji joravar Singh vs Secretary of State for India, (1924) L.R. 51 I.A. 357, relied on.
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<s>[INST] Summarize the judgementivil Appeal No. 3255 of 1989.
From the Judgment and Order dated 29.7.1985 of the Bombay High Court in W.P. No. 2137 of 1979.
V.A. Bobde, S.D. Mudaliar and A.G. Ratnapaxkhi for the Appellant.
S.K. Dholakia, A.S. Bhasme and A.M. Khanwilkar for the Respondents.
For the Respondent No. 4 in person (not present).
The Judgment of the Court was delivered by SHARMA, J.
Notice for final disposal of the case was served on the respondents.
Heard the learned counsel for the parties.
Special leave is granted.
This case is dependent on the correct meaning and scope of Rule 59 of the Mineral Concession Rules, 1960 (hereinafter referred to as the Rules).
A certain area in village Bazargaon, District Nagpur was reserved for Nistar purposes (that is, for grazing of cattle etc.).
The respond ent No. 4 applied for grant of a mining lease in regard to the said area which was allowed.
The appellant, who is a local resident, challenged the allotment on the ground that the procedure for settlement as laid down in Rule 59 read with Rule 58 was not followed before the grant.
Rule 58 deals with availability of areas for re grant of a mining lease and requires an entry to that effect to be made in a 832 register referred to in Rule 21(2) of the Rules, and a notification to be published in the official gazette at least 30 days in advance.
The purpose obviously is to enable the members of general public to apply for the proposed lease.
Rule 59 directs the procedure in Rule 58 to be fol lowed in the cases mentioned thereunder in the following terms: "59.
Availability of certain areas for grant to be notified In the case of any land which is otherwise available for the grant of a prospecting licence or a mining lease but in respect of which the State Government has refused to grant a prospecting licence or a mining lease on the ground that the land should be reserved for any purpose, the State Government shall, as soon as such land becomes again available for the grant of a prospecting licence or mining lease, grant the licence or lease after following the procedure laid down in rule 58.
" The appellant contends that as the prescribed procedure had not been followed, the grant in favour of the respondent No. 4 is illegal and fit to be set aside. ' 4.
Admittedly the disputed area was reserved for Nistar purposes and when an application for grant of mining lease was earlier made by a third party it was rejected on the ground that it was so~ reserved.
Further, there is no dis pute that before the impugned grant was made in favour of the respondent No. 4 the procedure prescribed by Rule 58 was not followed, and no opportunity was given to any other person before entertaining the request of the respondent No. 4.
The question in this background is whether Rule 59 is attracted to the case.
The appellant 's application under Article 226 of the Constitution was dismissed by the Bombay High Court on the ground that Rule 59 was confined to cases where earlier reservation was made for mining purposes.
The stand of the respondents that the expression "reserved for any purpose" in rule 59 does not cover a case where the area was reserved for Nistar purposes or for any purpose other than that of mining was accepted.
Earlier the expression "reserved for any purpose" was followed by the words "other than prospecting or mining for minerals", which were omitted by an amendment in 1963.
Mr. Dholakia, learned counsel for the respondents, appearing in support of the 833 impugned judgment, has contended that as a result of this amendment the expression must now be confined to cases of prospecting or mining for minerals and all other cases where the earlier reservation was for agricultural, industrial or any other purpose must be excluded from the scope of the rule.
We are not pursuaded to accept the suggested interpre tation.
Earlier the only category which was excluded from the application of Rule 59 was prospecting or mining leases and the effect of the amendment is that by omitting this exception, prospecting and mining leases are also placed in the same position as the other cases.
We do not see any reason as to why by including in the rule prospecting and mining leases, the other cases to which it applied earlier would get excluded.
The result of the amendment is to extend the rule and not to curtail its area of operation.
The words "any purpose" is of wide connotation and there is no reason to restrict its meaning.
We do not see any ground for limiting the scope of the rule so as to deprive the members of general public to approach the State with competitive terms.
It is clearly in the public interest to notify the proposal to grant a mining lease, so that the best deserving person may have a chance to be considered.
The State and its authorities will, in that case, have the choice of selecting the most suitable person by following the just and equitable criteria laid down by the Rules.
If, on the other hand, the rule is con strued as suggested by the respondents, a resourceful appli cant can succeed in striking an un deserved bargain to the prejudice of the public interest.
We are, therefore, of the view that Rule 59 covered the present case and the grant in favour of the respondent No. 4 was illegally made in violation of Rule 58.
According ly, the appeal is allowed, the judgment of the High Court is set aside and the decision to grant the mining lease in question to the respondent No. 4 is quashed.
The State Government may now issue a notification and take other steps in accordance with law before proceeding further.
There will be no order as to costs.
P.S.S. Appeal allowed.
[/INST]Section 233 of the Code of Criminal Procedure (Act V of 1898) embodies the general law as to the joinder of charges and lays down a rule that for every distinct offence there should.
be a 589 separate charge and every such charge should be tried separately.
No doubt the object of section 233 is to save the accused from being embarrassed in his defence if distinct offences are lumped together in one charge or in separate charges and are tried together but the Legislature has engrafted certain exceptions upon this rule contained in sections 234, 235, 236 and 239.
Section 235 of the Code of Criminal Procedure provides that if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for every such offence.
The prosecution story showed that the offence of extortion committed on a particular day was one of a series of acts connected with the offence of murder and attempt to murder committed on their previous day in such a way as to form one transaction.
The incidents related in the evidence left no doubt that from the moment the accused (a Reserve Inspector of Police) started from the Police State, he committed a series of acts involving killing, injuring people, unlawfully confining others and extorting money from one of them and therefore the series of acts attributed to him constituted one transaction in the course of which two offences which were alleged to be distinct were committed.
Held, that under the circumstances the case fell within the purview of section 235 of the Code of Criminal Procedure and such joinder was permitted by the exception enacted in that section.
Where the two Judges of the High Court on appeal are divided in their opinion as to the guilt of the accused and the third Judge to whom reference is made agrees with one of them who is upholding the conviction and sentence, it is desirable as a matter of convention though not as a matter of strict law that ordinarily the extreme penalty should not be imposed.
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<s>[INST] Summarize the judgementN: Criminal Appeal Nos.
345 346 of 1991.
From the Judgement and Order dated 14.6.1990 of the Madras High Court in Referred Trial Nos. 4/89 and 5/89 and Crl.
Appeal Nos.
593/89 and 594 of 1989.
715 Raju Ramachandran, Jaga Rao, Alok Agarwal, Ms. Malini Bhat and section Ravindra Bhatt for the appellants.
V.R. Karthikeyan and V. Krishnamurthy for the respondent.
The Judgment of the Court was delivered by K. RAMASAWAMY, J.
Special leave to appeals granted.
Heard the learned counsel, Sri Raju Ramachandran amicus curiae for the appellants and Sri V. Krishnamurthy, the learned Standing Counsel for the State.
The appellants Sevaka Perumal and Isakkimuthu for short 'A 1 ' and 'A 2 ' in Appeal arising out of S.L.P. (Crl.) No. 1842/90 are accused in Sessions Case No. 283 of 1986 on the file of the Addl.
Sessions Judge, Tirunelveli Sessions Division and appellants in Criminal Appeal No. 594 of 1989 and R.T. No. 4 of 1989 by judgment, dated June 14, 1990 of the High Court of Madras.
Criminal Appeal arise out of S.L.P. (Crl.) No. 1841/90; Sessions Case No. 284 of 1986 of the same Sessions Division and Criminal Appeal No. 593 and R.T. No. 5 of 1989 dated June 14, 1990 of the Madras High Court respectively, A 1 is the appellant.
In each case the Sessions Court convicted them under sections 120B, 364, 392 read with section 397; section 302 read with section 34 I.P.C. and sentenced to death.
In Crl.
Appeal No. 594 of 1989 and R.T. No. 4 of 1989, the High Court confirmed the conviction and sentence of death of both the appellants.
In Crl.
Appeal No. 593 of 1989 and R.T. No. 5 of 1989, the High Court confirmed the conviction and sentenced of death of the A 1 and acquitted A 2 of all the charges.
The case of the prosecution in brief is that the appellants and PW 1, the approver belonged to kidarakulam village and became friends.
A 1 used to bring money form the timber shop of his brother in law (PW 4) in Sessions Case No. 284/86 in whose shop A 1 had worked.
They used to go to various places.
A 1 used to purchase ganja from chenglapatai and other places and A 1 and A 2 used to sell them.
Yet they did not have enough money to spend lavishly.
They attempted to commit theft in the localities but became impracticable.
Therefore, they conspired to entice boys from affluent families to bring cash and jewellery from their houses; take them to far away places; take their money or jewellery and to murder them for gain.
Pursuant thereto in 1978 they murdered one Athippan; in 1981 one Chelladurai; in March, 1982 one Hariramachandran and in 1983 one Christodas.
In Sessions Case No. 283/86, the deceased boy is Athiappan.
In 716 Sessions Case No. 284/86, the deceased boy is Hariramachandran.
Sessions Case No. 282/86 on the file of the Sessions Court.
Madurai Division relates to deceased Chelladurai.
Therein also we are informed that the appellants were convicted but on appeal they were acquitted.
In sessions Case relating to the death of Christodas, it also ended in conviction and sentence of death was imposed on the appellants and is pending confirmation in the High Court.
It is sufficient to set out the material fact leaving out the minor details in Sessions Case No. 284/86 to meet the points raised by the counsel for the appellants.
A 1 enticed the deceased, Hariramachandran, his nephew (elder sister PW 2 ' son) to bring jewellery from the house of PW 2 and PW 4.
The appellants and PW 1 took him to Madurai.
On the way the deceased went to the house of PW 3 and handed over one chain to be delivered to his mother and took M.O. 1 chain with him.
A 1 had taken a room in the lodge at Madurai run by PW 16.
On coming to know that they were staying in Madurai, PW 2, PW 4, her husband and PW 3 went to the lodge and the deceased was found threat.
He informed them that the chain was with A 1 and he would come in the evening at 8.00 p.m. After waiting for some time and when it was getting dark, the ladies went away asking PW 4 to get the chain and the deceased after A 1 's arrival.
While PW 4 was waiting the deceased went down stairs and after A 1 's arrival told him of his mother 's coming etc.
and from there they went away to Madras, and having come to know that they left the place PW 4 left to his village.
On the next day they returned to Madurai.
From there they went to Usilampatti and A 1 then purchased a knife at the Bus Stand without the knowledge of the deceased and proceeded to Peraiyar road.
They sat near a jungle stream.
While A 1 and the deceased Harirmachandran were sitting near a stone on the southern side of the road, A 2 and PW 1 were standing at a distance, A 1 stabbed Harirmachandran in his stomach with a knife and the deceased collapsed on the stone.
A 1 threw away the knife in the river.
He threw the deceased in the nearby well and washed his hands and legs in the stream.
They returned to Usilampatti Bus Stand.
From there they came to Madurai.
A 1 sold M.O. 1 chain to PW 24 and gave one hundred rupees each to PW 1 and A 2.
This evidence of PW 1 received sufficient corroboration from the evidence of prosecution witnesses.
Sri Raju Ramachandran contended that the dead body was admittedly found in a highly decomposed condition.
There is no proper identification of the dead body to be of the deceased.
The 717 mother PW 2 identified only with reference to the photograph taken of the dead body.
There is evidence that the deceased wrote a letter of leaving to unknown destination.
Unless there is proof that the dead body belongs to Hariramachandran, it is not safe to convict to A 1 to a capital punishment of death sentence.
We find no force in the contention.
In a trial for murder it is not an absolute necessity or an essential ingredient to establish corpus delicti.
The fact of death of the deceased must be established like any other fact.
Corpus delicti in some cases may not be possible to be traced or recovered.
Take for instance that a murder was committed and the dead body was thrown into flowing tidal river or steam or burnt out.
It is unlikely that the dead body may be recovered.
If recovery of the dead body, therefore, is an absolute necessity to convict an accused, in many a case the accused would manage to see that the dead body is destroyed etc.
and would afford a complete immunity to the guilty from being punished and would escape even when the offence of murder is proved.
What, therefore, is required to base a conviction for an offence of murder is that there should be reliable and acceptable evidence that the offence of murder, like any other factum, of death was committed and it must be proved by direct or circumstantial evidence, although the dead body may not be traced.
In this case the evidence of PWs. 7 to 10 would establish that they have seen the dead body of the deceased Hariramachandran in the well and brought it out and the photograph was taken at the time of inquest.
It was identified to be that of the deceased by no other than his mother, PW 2.
Thus we have no hesitation to hold that there is no doubt as regards the identity of the dead body and that the medical evidence establishers that the deceased died due to stabbing with sharp edged weapon like knife.
It is next contended that PW 1 being an approver, his evidence must be reliable and must receive corroboration on all material particulars from independent evidence.
PW 1 is neither a reliable witness nor did his evidence receive such corroboration.
Therefore, his evidence cannot form the basis to convict the appellants.
It is his contention that in Hariramachandran 's death case the evidence of PW 1 was not accepted as regards the complicity of A 2 and he was acquitted.
Therefore, PW 1 is not a reliable witness.
This contention too is devoid of any force.
PW 1 had given wealth of details of commission of the crimes.
Under section 133 of the Evidence Act 1 of 1872, an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
Section 114 illustration (b) postulates that an accomplice is unworthy of credit, unless he is corroborated in mate 718 rial particulars.
In King vs Baskervilli, Lord Reading, CJ, laid the test that the corroboration need not be direct evidence that the accused committed the crime.
It is merely circumstantial evidence of his connection with the crime.
The nature of the corroboration will depend and vary according to the particular circumstances of each case.
What is required is some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon.
In Mahadeo vs The King AIR 1936 P. C. 242 the judicial committee held that the evidence of an accesory must be corroborated in some material particulars not only bearing upon the facts of the crime but upon the accused 's implication in it.
This Court in Rameshwar vs The State of Rajasthan, ; held that it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence of the case, apart from the testimony of the complainant or its accomplice should in itself be sufficient to sustain conviction.
All that is necessary is that there should be independent evidence which will make it reasonably safe to believe that the witness 's story that the accused was the one that committed the offence could be acceptable.
The corroboration need not be direct evidence that the accused committed the crime.
It is sufficient if it is merely circumstantial evidence of his connection with the crime.
In section Swaminathan vs State of Madras, AIR 1957 SC 340 this Court held that corroboration of approver 's evidence need not be of a kind which prove the offence against the accused.
It is sufficient if it connects the accused with the crime when the accused had been charged for the offences of conspiracy and of cheating, a specific instance of cheating proved beyond doubt against one of the accused would furnish the best corroboration of the offence of the conspiracy.
In Sarwan Singh vs The State of Punjab, ; relied by Shri Raju Ramachandran, this Court held that the approver must be a reliable witness and the evidence must receive sufficient corroboration.
In that case the corroboration of minor particulars was accepted to be sufficient to hold the approver to be reliable witness.
In B.D. Patil vs State of Maharashtra, this Court held that the conviction of an accused on the testimony of an accomplice cannot be said to be illegal, yet the courts will, as a matter of practice do not accept the evidence of such a witness without corroboration in material particulars.
There should be corroboration of the approver in material particulars and must be qua each accused.
In Md. Hussain Umar Kochra etc.
vs K.S. Dalipsinghji & Anr., [1970] 1 S.C.R. 130 it was held that the combined effect of sections 133 and 114(b) is that though a conviction based upon accomplice evidence is legal the court will not accept such evidence unless it is 719 Corroborated in material particulars.
The corroboration must be from an independent source.
If several accomplices simultaneously and without previous concert giving consistent account of the crime implicating accused, the court may accept the several statements as corroborating each other.
In Ram Narain vs State of Rajasthan, ; this Court held that section 114(b) strikes a note of warning, cautioning the court that an accomplice does not generally deserve to be believed unless corroborated in material particulars.
In other words, the rule is that the necessity of corroboration is as matter of prudence except when it is safe to dispense with such corroboration must be clearly present to the mind of the Judge.
In Abdul Sattar vs Union Territory, Chandigarh, [1985] (Suppl.) S.C.C. 599 this Court further held that it is not safe to convict an accused on the charges like murder upon the evidence of uncorroborated testimony of the approver.
Thus the settled law is that an approver is a competent witness against the accused person.
But the court, to satisfy its conscience, insists as caution and prudence to seek, as a rule, corroboration to the evidence of the approver, a particips criminis from independent evidence occular or circumstantial, of general particulars regarding the story spoken off by the approver of the commission of the crime and the part played by the accused therein to find whether it is true and worthy of acceptance.
The reliability of the evidence of an approver should be considered from totality of the facts and circumstances.
In the trial of Athiappan murder there is no dispute that such a corroborative evidence connecting both the appellants is available which was minutely considered by the trial court and the High Court and was accepted.
We find no infirmity in that regard.
In the trial of the death of Hariramachandran, A. 2 was acquitted on the ground that his extra judicial confession made to P.W. 23, the only corroborative evidence,was disbelieved by the High Court.
Both the courts below gave categorical finding that P.W. 1 is a reliable witness.
the evidence of the approver received corroboration from independent evidence on general prosecution case, namely, P.W. 16 spoke that the deceased was brought by the accused and stayed in the lodge.
P.Ws 2 to 4 spoke of A 1 working in their shop, previous theft by A 1 and M.O. 1 being missing, their attempt to take back the deceased and M.O, 1, the deed body was found in the well and was taken out as spoke to by P. Ws.
7to 10.
The medical evidence establishes the stabbing with the knife and death was due to it.
P.W. 24 corroborates A. 1 of selling M.O. 1 chain and taking the money.
The canopy of the material evidence from independent sources sufficiently corroborates the approver ' evidence.
720 PW 1 is a reliable witness.
No infirmity has been pointed out to disbelieve his evidence.
It is next contended that the courts below were not justified in imposing the extreme penalty of death sentence under section 302, I.P.C. and strongly relied upon the judgment of Bachan Singh 's case.
It is contended that the acquittal of A. 2 giving the benefit of doubt in Hariramachandran 's death trial introduces an element of doubt which should be extended to convert the death sentence of A. 1 to life imprisonment.
We find no susbstance in the contention.
The doctrine of benefit of doubt only would operate in proof of the commission of the offence.
If there is any reasonable doubt, not the doubt of vacillating mind of a Judge, the accused is entitled to the benefit and acquitted.
The benefit of doubt again does not enter in the area of consideration of imposing sentence.
The law regulates social interest, arbitrates conflicting claims and demands.
Security of persons and property of the people is an essential function of the State.
It could be achieved through instrumentality of criminal law.
Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges.
The contagion of lawlessenss would undermine social order and lay it in ruins.
Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence.
Therefore, law as a corner stone of the edifice of order should meet the challenges confronting the society.
Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be as it should be a decisive reflection of social consciousness of society".
Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix.
By deft modulation of sentencing process be stern where it should be, and tempered with mercy where it warrants to be.
The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused and all other attending circumstances are relevant facts which would enter into the area of consideration.
For instance a murder committed due to deep seated personal rivalry may not call for penalty of death.
But an organised crime or mass murders of innocent people would call for imposition of death sentence as deterrence.
In Mahesh vs State of M.P., this Court while refusing to reduce that death sentence observed thus: 721 `It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts.
To give the lesser punishment for the accused would be to render the justicing system of the country suspect.
The common man will lose faith in courts.
In such cases, he understands and appreciates the language of deterrence more than the reformative jargon '.
Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine to public confidence in the efficacy of law and society could not long endure under serious threats.
If the courts did not protect the injured, the injured would then resort to private vengeance.
It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc.
It is clear from the evidence that the accused indulged in illegal business of purchase and sale of ganja.
They conspired to entice innocent boys from affluent families took them to far flung places where the dead body could not be identified.
The letters were written to the parents purporting to be by the deceased to delude the parents that the missing boy would one day come home alive and that they would not give any report to the police and the crime would go undetected.
Four murders in a span of five years were committed for gain in cold blooded , pre meditated and planned way.
It is undoubted that if the trial relating to Athiappan murder had taken place and concluded earlier to the trial and conviction of other three murders, the subsequent murders are not relevant facts to be considered.
But in this case the trial of the murder relating to Athiappan and Hariramachandran practically took place simultaneously by which date the appellants were convicted for the murder of Chelladurai and Christodas.
Therefore ,the reference of conviction and sentence by the Sessions Court to those two cases also are relevant facts.
The deceased Hariramachandran is no other than the nephew (elder sister 's son) of A 1.
This would establish his depravity and hardened criminality.
No regard for precious lives of innocent young boys was shown.
They adopted the crime of murder for gain as a means to living.
Undoubtedly under section 235(2) of Code of Criminal Procedure, the accused is entitled to an opportunity to adduce evidence and if need be the case is to be adjourned to another date.
It is illegal to convict, an accused and to impose sentence on the same day.
It is true 722 as contended for the State that under section 309, third proviso brought by Amendment Act, 1978 that no adjournment should be granted for the purpose only of enabling the accused person to show cause against sentence to be imposed upon him.
Under section 235(2) when the accused has been given right to be heard on the question of sentence it is a valuable right.
To make that right meaningful the procedure adopted should be suitably moulded and the accused given an opportunity to adduce evidence on the nature of the sentence.
The hearing may be on the same day if the parties are ready or be adjourned to a next date but once the court after giving opportunity propose to impose appropriate sentence again there is no need to adjourn the case any further thereon.
No doubt the Sessions Judge needed to adjourn the case under section 235(2) to next date but in the High Court the counsel was directed to show any additional grounds on the question of sentence .
The High Court observed that the counsel was unable to give any additional ground.
It is Further contended that the appellants are young men.
They are the bread winners of their family each consisting of a young wife.
minor child and aged parents and that, therefore, the death sentence may be converted into life.
We find no force.
These compassionate grounds would always be present in most cases and are not relevant for interference.
Thus we find no infirmity in the sentence awarded by the Sessions Court and confirmed by the High Court warranting interference.
The appeals are accordingly dismissed.
G.N. Appeal dismissed.
[/INST]The General Office Order No. 26 dated 1.12.1943 of the Appellant Company provided that employees with 30 years ' service or more would be eligible to receive "Retiring Allowance" (pension).
The said office order also provided that all permanent employees who were in the Company 's service prior to 1.1.1947 and who do not qualify for retiring allowance on retirement, will be eligible for gratuity on finally leaving the Company 's service subject to the prescribed conditions being fulfiled.
In 1956 a memorandum of settlement was signed by the appellant company and the Employees ' Union under which the employees in service prior to 1.1.47 were required to opt at the time of leaving service either for gratuity or in lieu of the gratuity the retiring allowance.
Later the came into force and the payment of gratuity became statuory.
The employer and the Employees ' Union jointly applied to the Government for exemption from the provisions the statue which was refused.
Some of the retiring employees of company filed applications under Section 33 C(2) of the before the Labour Court claiming pension by alleging that payability of pension was a condtion of service and the employer had stopped it without any Justification.
The Labour Court allowed the applications.
Against the 638 order of the Labour Court the employer preferred six writ petitions.
In the meantime the same dispute was referred to the Industrial Tribunal and by an award the Tribunal answered the reference against the employees.
The Employees ' Union challenged the award by filling a writ petition in the High Court.
All the writ petitions were heard by a learned single judge of the High Court who allowed the writ petitions of the management against the order of the Labour Court and dismissed the writ petition preferred by the Labour Union challenging the award of the Tribunal.
Writ appeals were carried against the single Judges ' decision.
The Appellate Bench of the High Court held that gratuity provided under the settlement was not a substitute of pension and the claim of pension was available to employees notwithstanding the settlement.
Hence this appeal by the employer company.
Dismissing the appeals, this Court, HELD: The 1956 settlement between the parties does not provide for payment of pension except to pre 1947 employees and making the benefit liable to exercise of option under clause 6(d) of the settlement.
The retiral benefit (pension) was payable to all qualfied employees as a matter of practice.
If under the settlement that was not done away with, the benefit arising out of General Office order No. 26 would still be available and gratuity contemplated under the settlement would not be a substitute of the retiral benefit of pension.
The Appellate Bench of the High Court was right in holding that the entitlement to pension had not been substituted by the settlement of 1956 and, therefore, the claim to pension subject to qualification being satisfied was available to be maintained notwithstanding the settlement of 1956.
The High Court rigtly came to the conclusion that the Labour Court had justifiably worked out the dues and the claim petition under section 33 C(2) of the 1947 Act.
[641C D, 642C D]
</s>
|
<s>[INST] Summarize the judgementAppeal No. 368 of 1966.
Appeal by special leave from the judgment and order dated February 3, 1964 of the Patna High Court in, Appeal from Appellate Order No. 99 of 1963.
Sarjoo Prasad and R. C. Prasad, for the appellants.
K. K. Sinha and section K. Bisaria, for the respondents.
The Judgment of the Court was delivered by Hegde, J.
This appeal against the judgment of the Patna High Court dated the 3rd February, 1964 in its Appellate Order No. 99 of 1963 was filed obtaining special leave from this Court.
It arises from a proceeding under section 47, Civil Procedure Code.
In execution of a mortgage decree, the decree holders sought to proceed against 910 Bakasht lands of the judgment debtors.
The judgment debtors objected to the same on the ground that the execution was barred under section 4(d) of the Bihar Land Reforms Act, 1950 (to be herein,after referred to as the Act).
But that objection was overruled by the executing court on two different grounds namely (1) that the objection in question is barred by the principles of res judicata and (2) the bar of section 4(d) pleaded is not tenable.
The decision of the execution court was affirmed appeal but reversed in second appeal by the High Court.
The two questions that arise for decision in this appeal are (1) whether the objection as regards the executability of the decree pleaded by the judgment debtors is barred by the principles of res judicata and (2) whether the mortgage decree has become unexecutable in view of the provisions of the Act.
We shall now briefly set out the material facts of the case.
The mortgages, the appellants in this appeal obtained a preliminary decree on June 26, 1947 on the basis of a mortgage.
The property mortgaged was an Estate within the meaning of the Act.
That property included both Bakasht lands as well as other lands.
The Act came into force after the passing of the aforementioned preliminary decree.
The decree holders filed petition for passing a final decree on September 19, 1955.
The Estate mortgaged vested in the State of Bihar on January 1, 1956 as a result of a notification issued under section 3 (1) of the Act.
A final decree was passed in the mortgage suit on October 1, 1956.
Thereafter the mortgagees applied under section 14 of the Act and got determined the compensation to which they were entitled under the Act.
It is said that they did not proceed, any further in that proceeding but on the other hand filed on June 18, 1958 an execution petition to execute the mortgage decree against the, Bakasht lands.
The judgment debtors resisted that execution by filing an application under section 47, Civil Procedure Code (Misc.
Case No. 94 of 1959) on the ground that the decree cannot be executed in view of the provisions of the Act.
That application was dismissed for the default of the judgment debtors on September 12, 1959.
A second application raising the same ground (Misc.
Case No. 110 of 1959) was filed by the judgment debtors is barred on the principles of res judicata and further on July 23, 1960 for default of the judgment debtors.
A third application raising the same ground of objection (Misc.
Case No. 91 of 1960) was filed by the judgment debtors on September 12, 1960.
That application was dismissed on January 4, '1962 after examining the contentions of the parties.
Therein the execution court came to the conclusion that the objection raised by the judgment debtors is barred on the principles of res judicata and further that the same has no merits.
This decision as mentioned earlier was affirmed by the appellate court but reversed by the High Court.
We shall first take up the contention that the objection taken 911 by the judgment debtors ' is barried by principles of res judicata.
Though at one stage, learned Counsel for the appellants decree holders attempted to bring the case within Explanation 5, section 11, Civil Procedure Code, he did not pursue that line of argument but tried to support his contention on the broader principles of res judicata.
The real question for decision in this case is whether the dismissal of Misc.
cases Nos. 94 and 110 of 1959 for default of the judgment debtors can be said to be a final decision of the court after hearing the parties.
Before a plea can be held to be barred by the principles of res judicata, it must be shown that the plea in question had not only been pleaded but it had been heard and finally decided by the court.
A dismissal of a suit for default of the plaintiff, we think, would not operate as res judicata against a plaintiff in a subsequent suit on the same cause of action.
If it was otherwise there was no need for the legislature to enact rule 9, Order 9, Civil Procedure Code which in specific term say that where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action.
The contention that the dismissal of a previous suit for default of the plaintiffs operates as res judicata in a subsequent suit in respect of the same claim was repelled by the Judicial Committee, of the Privy Council in Maharaja Radha Parshad Singh vs Lal Sahab Rai and Ors.(1).
Therein the Judicial Committee observed thus : "None of the questions, either of fact or law, raised by the pleadings of the parties was heard or determined by the Judge of the Shahabad Court in 1881; and his decree dismissing the suit does not constitute res judicata within the meaning of the Civil Procedure Code.
It must fall within one or other of the sections of chapter VII of the Code; in the present case it is immaterial to consider which, the severest penalty, attached to such dismissal in any case being that the plaintiff cannot bring another suit for the same relief.
" From this decision it is clear that the Judicial Committee opined that before a plea can be held to be barred by res judicata that plea must have been heard and determined by the court.
Only a decision by a court could be res judicata, whether it be statutory under section 11, Civil Procedure Code or constructive as a matter of public policy on which the entire doctrine rests.
Before an earlier decision can be considered as res judicata the same must have been heard and finally decided see Pulvarthi Venkata Subba.
Rao vs Velluri Jagannadha Rao, and Ors.
The courts in India have generally taken the view that an execution petition which has been dismissed for the default of the (1) L.R. 17 I.A. 150.
(2) ; 912 decree holder though by the time that petition came to be dismissed, the judgment debtor had resisted the execution on one or more grounds, does not bar the further execution of the decree in pursuance of fresh execution petition filed in accordance with law see Lakshmibai Anant Kondkar vs Ravji Bhikaji Kondkar(1).
Even the dismissal for default of objections raised under section 47, Civil Procedure Code does not operate as res judicata when the same objections are raised again in the course of the executionsee Bahir Das Pal and Anr.
vs Girish Chandra Pal (1) Bhagawati Prasad Sah vs Radha Kishun Sah and OrS. (3); Jethmal and Ors.
vs Mst.
Sakina (4) ; Bishwanath Kundu vs Sm.
Subala Dassi (5).
We do not think that the decision in Ramnarain vs Basudeo(6) on which the learned Counsel for the appellant placed great deal of reliance is correctly decided.
Hence we agree with the High Court that the plea of res judicata advanced by the appellant is unsustainable.
The next question is whether the execution is barred under the provisions, of the Act.
The contention of the judgment debtors is that it is 'so barred whereas according to the appellants as the Bakasht lands which form part of the mortgaged property had, not vested in the State, the execution can proceed against those lands.
Therefore we have to see whether the entire mortgaged property had vested in the State in pursuance of the notification under section 3 or only the mortgaged property minus the Bakasht lands.
There is no dispute that the property mortgaged was an Estate within the meaning of section 2(1) and the notification issued under section 3 covered the entirety of the Estate.
But what was urged on behalf of the appellants is that what had vested in the State was the non bakasht lands as well as the proprietory interest in the Bakasht lands and hence the Bakasht lands do not have the protection of section 4(d); Consequently it is not necessary for them to exclusively proceed under section 14.
The consequences of the vesting of an Estate is set out in section 4.
Section 4(a) provides that once an Estate vests in the State the various rights in respect of that Estate enumerated therein shall also vest in the State, absolutely free from all encumbrances.
Among the rights enumerated therein undoubtedly includes the right of possession.
In view of section 4(a) there is hardly any doubt that the proprietor loses all his rights in the estate in question.
After setting out the various interests lost by the proprietor the section proceeds to say "such proprietoror tenure holder shall (1) XXXI, B.L.R. 400.
(2) A.I.R. (3) A I.R. 1950 Pat. 354.
(4) A. I. (5) A.I.R. 1962 Cal. 272.
(6) I.L.R. XXV pat.
913 cease to have any interests in such estate or tenure, other than the interests expressly saved by or under the provisions of this Act".
In order to find out the implication of the clause extracted above we have to go to section 6 which provides that on and from the date of vesting all lands used for agriculture or horticultural purposes which were in khas possession of an intermediary on the date a vesting (including certain classes of land specified in that section) shall subject to the provisions of sections 7A and B be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a raiyat under the State having occupancy rights in respect of such lands, subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner.
Reading sections 3, 4 and 6 together, it follows that all Estates notified under section 3 vest in the State free of all encumbrances.
The quondum proprietors and tenure holders of those Estates lose all interests in those Estates.
As proprietors they retain no interest in respect of them whatsoever.
But in respect of the lands enumerated in section 6 the State settled on them the rights of raiyats.
Though in act the vesting of the Estates and the deemed settlement of raiyats rights in respect of certain classes of lands in cluded in the Estates took place simultaneously, in law the two must be treated as different transactions; first there was a vesting of the Estates in the State absolutely, and free of all encumbrances.
Then followed the deemed settlement by the State of raiyat 's rights on the quondum proprietors.
Therefore in law it would not be correct to say that what vested in the State are only those interests not coming within section 6.
Section 4(d) provides that "no suit shall lie in any Civil Court 'for the recovery of any money due from such proprietor (proprietor whose estate has vested in the State) or tenure holder the payment of which is secured by a mortgage of, or is a charge on, such estate or tenure and all suits and proceedings for the recovery of any such money which may be pending on the date of vesting shall be dropped".
Proceedings in this.
section undoubtedly include execution proceedings.
This is not a case where only a part of the mortgaged property has vested in the such the rule laid down by this Court in Raj Kishore Pratap(1) is not attracted.
As mentioned earlier the State and as vs Ram entire Estate mortgaged had vested though some interest in respect of a portion of the mortgaged property had been settled by the State on the mortgagors.
Under the circumstances the only remedy open to the decreeholders is that provided in Chap.
IV of the Act i.e. a claim under (1) ; ; 914 section 14 before the Claims Officer for "determining the amount of debt legally and justly payable to each creditor in respect of his claim '.
The procedure to be followed in such a proceeding is prescribed in sections 15 to 18. 'Provisions relating to the assessment and payment of compensation payable to the quondum proprietors and tenure holders are found in Chap.
V of the Act (sections 19 to 31.) Section 24(5) provides that "in the case where the interest of a proprietor or tenure holder is subject to a mortgage or charge, the compensation shall be first payable to the creditor holding such mortgage or charge and the balance, if any, shall be payable to the proprietor or tenure holder concerned:" That subsection further prescribes the maximum amount that can be paid to such a creditor.
In view of what has been stated above it follows that under the circumstances of this case it is not open to the appellants to proceed with the execution.
Their only remedy is to get compensation under the Act.
Our conclusion receives strong support from some of the decisions of this Court.
In Rana Sheo Ambar Singh vs Allhabad Bank Ltd., Allahabad(1), a question identical to the one before us, but arising under the U.P. Zamindari Abolition and Land Reforms Act, came up for consideration by this Court.
One of the questions that arose for decision in that case was whether the Bhumidari right settled by the State on a previous proprietor whose estate had vested in the State was liable to be proceeded against in execution of a mortgage decree against the Estate that had vested in the State.
This Court held that it was not liable to be proceeded against.
Therein it was ruled that the intention of the U.P. Zamindari.
Abolition and Land Reforms Act was to vest the proprietory rights in the Sir and Khudkasht land and grove land in the State and resettle on intermediary not as compensation but by virtue of his cultivatory possession of lands comprised therein and on a new tenure and confer upon the intermediary a new and special right of Bhumidari, which he never had before by section 18 of the Act.
The provisions in that Act relating to vesting and settlement of Bhumidari rights are in all essential particulars similar to those in the Act relating to vesting and settlement of Bakasht lands.
This Court further ruled in that case that the mortgagee could only enforce his rights against the mortgagor in the manner as provided in section 6 (h) of the U.P., Act read with section 73 of the Transfer of Property Act and follow the compensation money under the Act.
In Krishna Prasad and Ors.
vs Gauri Kumari Devi( 2) the question that arose for decision by the Court was whether, a mortgage decree holder could proceed against the properties of the mortga (1) ; (2) [1962] Supp.
3 S.C.R. 564.
915 gor other than those mortgaged in enforcement of the personal covenant when the property mortgaged had vested in the State under the provisions of the Act.
That question was answered in the negative.
In the course of the judgment Gajendragadkar, J. (as he then was) who spoke for the Court observed that there is no doubt "that the scheme of the Act postulates that where the provisions of the Act apply, claims, of the creditors have to be submitted before the Claim Officer, the claimants have to follow the procedure prescribed by the Act and cannot avail of any remedy outside the Act by instituting suit or any other proceeding in the court of ordinary civil jurisdiction.
" Proceeding further he observed "It is in the light of this scheme of the Act that we must revert to section 4(b) and determine what its true scope and effect are.
Mr. Jha contends that in construing the words of Section 4 (d) it would be necessary to bear in mind the object of the Act which was merely to provide for the transference to the State of the interests of the proprietors and tenure holders in land and of the mortgagees and lessees of such interests.
It was not the object of the Act, says Mr. Jha, to extinguish, debts due by the proprietors or tenure holders and so, it would be reasonable to confine the operation of section 4 (d) only to the claims made against the estates which have vested in the State and no others.
In our opinion, this argument proceeds on an imperfect view of the aim and object of the Act.
It is true that one of the objects of the Act was to provide for the transference to the State of the estates as specified.
But as we have already seen, the provisions contained in section 16 in regard to the scaling down of the debts due by the proprietors and tenure holders clearly indicate that another object which the Act wanted to achieve was to give some redress to the debtors whose estates have been taken away from them by the notifications issued under section 3.
Therefore, in construing section 4(d), it would not be right to assume that the interests of the debtors affected by the provisions of the Act do not fall within the protection of the Act" and again at page 578 "Having regard to the said scheme, it is difficult to confine the application of section 4(d) only to execution proceedings in which the decree holder seeks to proceed against the estate of the debtor.
In fact, an execution proceeding to recover the decretal amount from the estate which has already vested in the State, would be incompetent because the said estate no longer belong to the judgment debtor.
" Sup CI 69 9 916 Summarising the effect of the aforementioned decisions this is what this Court observed in Raj Kishore 's case(1) a case arising under the Act: From the principles laid down by this Court in the above two decisions, follows that where the whole of the property mortgaged is an estate, there can be no doubt that the procedure prescribed by Chapter IV has to be followed, in order that the amount due to the creditor should be determined by the claims officer and the decision of the claims officer or the Board has been made final by the Act.
" For the reasons mentioned earlier we are of the opinion that the decision of the majority of the judges in the Full Bench decision in Sidheshwar Prasad Singh vs Ram Saroop Singh(2) is not correct.
The true effect of the decisions of this Court in Rana Sheo Ambar Singh 's case(3) and Krishna Prasad 's case(4) is as explained by Kamla Sahai, J. in that case.
In the result this appeal fails and it is dismissed with costs.
Y.P. Appeal dismissed.
[/INST]J, a Hindu Jat governed by the Punjab Customary Laws, sold without legal.
necessity, in 1916, a fourth share of his ancestral land to one section Under the Punjab, Customary Laws females could not challenge a sale of ancestral property by a male owner.
J 's son G, in suit No. 75 of 1920 obtained a declaratory decree to the effect that the sale to S would not enure beyond the life time of J. When J died in 1959, the had come into force and his three sons, daughters and widow inherited his estate in equal shares.
The three sons, the widow and the daughters then filed a suit for possession of the aforesaid alienated land on the basis of the decree in suit No. 75 of 1920.
Under section 8 of the Punjab Custom (Power to Contest) Act 1 of 1920 only those competent to contest an alienation clould take advantage of a decree obtained by a reversioner.
The trial court passed a decree for a half share of the suit property in favour of the sons only, holding that the female heirs of J were not entitled to take advantage of the decree in suit No. 75 of 1920.
The District Court modified the decree by decreeing the suit in respect of the whole property in favour of the sons.
In second appeal the High Court restored the decree of the trial court holding that the claim of the female heirs of J could not be upheld, firstly because of the Punjab customary law and section 8 of Act 1 of 1920, and secondly because they had not filed any appeals against the orders of the lower courts.
In appeals by special leave before this Court, HELD : (i) The preliminary objections 'raised by the alienees that the suit in its entirety should have been dismissed, because by the enactment of the J was to be deemed a full owner and notwithstanding the decree of 1920 his sons had after that Act no subsisting reversionary interest in the property, must stand rejected.
There is nothing in the which retrospectively enlarges the power of a holder of ancestral land or nullifies a decree passed before the Act.
[947 B C] (ii) Under the customary law of the Punjab the wife and the daughters of a holder of ancestral property could not sue to obtain a declaration that the alienation of ancestral property will not bind the reversioners after the death of the alienor.
But a declaratory decree 945 obtained in a suit instituted by a reversioner competent to sue has the effect of restoring the property alienated to the estate of the alienor.
[947 G] The effect of the declaratory decree in the suit filed by G in 1920 was merely to delclare that by the sale, the interest conveyed to the alienee was to enure during the life time of the alienor.
The conclusion was therefore inevitable that the property alienated reverted to the estate of J at the point of his death and all persons who would, but for the alienation have taken the estate were entitled to inherit the same.
If J had died before the was enacted, the three sons would have taken the estate to the exclusion of the widow and the two daughters.
After the enactment of the the estate devolved, by virtue of sections 2 and 4(1) of the , upon the three sons, the widow and the two daughters.
L947 H 948 B] The High Court was therefore in error in holding that because in the year 1920 the wife and daughters of J were incompetent to challenge the alienation of ancestral property by J, they could not, after the enactment, of the inherit his estate when succession (iii) The High Court was equally in error in holding that because the widow and daughters had not filed an appeal or cross objections against the decree of the lower courts, they were not entitled to any relief.
The sons, the daughters and the widow of J had filed the suit for a decree for possession of the entire property and their claim was that the alienee had no subsisting interest.
The District Court accepted that claim and granted a decree in favour of the three sons for the entire property which was alienated.
If the alienees were unable to convince the court that they had any subsisting interest in the property in dispute after the death of J, the court was competent under 0.
41 r. 33 of the Code of Civil Procedure to adjust the rights between the sons, the daughters, and the widow of J in that property.
[948 E G; 949 D] In 0.
41 r. 33 the expression 'which ought to have been passed ' means 'what ought in law to have been passed '.
if the Appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the 'subordinate court, it may pass or make such further or other decree or order as the justice of the case may require.
[949 D]
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<s>[INST] Summarize the judgement(CRL.) No. 369 of 1986.
Under Article 32 of the Constitution of India.
633 Govind Mukhoty, Ms. Nandita Haksar and L.R. Singh for the Petitioners.
D. Goburdhan for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
Peoples ' Union for Democratic Rights, an organisation said to be committed to the uphold ing.
of fundamental rights of citizens has filed this appli cation under Article 32 of the Constitution.
It is alleged that on 19th April, 1986, 600 to 700 poor peasants and landless people mostly belonging to the backward classes had collected for holding a peaceful meeting within the compound of Gandhi Library in Arwal, a place within the District of Gaya in the State of Bihar.
Without any previous warning by the police or any provocation on the part of the people who had so collected, the Superintendent of Police, Respondent No. 3 herein, reached the spot with police force, surrounded the gathering and opened fire as a result which several people were injured and at least 21 persons including chil dren died.
The petitioner alleged that separate unofficial inquiries have been held into the atrocity and the reports indicated that the number of deaths was much more than 21 and there was no justification for the firing.
It appears that there was a dispute relating to possession of 26 deci mals of low lying land adjacent to the canal at Arwal and to such dispute members of a rich Rajak family on one side and members of nine poor families on the other were parties.
Even though several people died and many more were injured by the ruthless and unwarranted firing resorted to by the police, to give a cover to the atrocities, the police start ed a false case being Arwal P.S. Case No. 59 of 1986 and therein implicated several innocent people including even some of the people who had been killed in the firing.
Three specific prayers were made in the writ petition, namely: (1) To issue an appropriate writ or make an order or direction in the matter of payment of full and proper compensation to the vic tims relations of the dead and to the people who were injured by police firing; (2) For a direction to withdraw the police case referred to above; and (3) For a direction to Respondent No. 1 to settle the land in dispute with the nine poor families.
634 During the hearing of the matter, an additional relief was pressed, namely, this Court should give a direction for instituting a judicial inquiry into the alleged atrocity.
It may be pointed out that during the pendency of this writ application the State Government in response to the growing demand for a judicial inquiry into the matter di rected an inquiry therein by Shri Vinod Kumar, Member, Board of Revenue, Bihar.
The said inquiry has been completed and the report has already been furnished to the Government.
On the orders of the Court, the report has been produced before this Court with a claim of privilege against disclosure thereof.
The incident drew a lot of publicity and attention both within the State as also outside.
Coming to know about it, Shri B.D. Sharma, Assistant Commissioner for Scheduled Castes and Scheduled Tribes visited the locality and made a report.
At the instance of the petitioner, that document was summoned and has been produced.
In respect thereof the Union Government has also claimed privilege.
In the affidavits in opposition filed on behalf of the respondents the factual assertions raised in the writ peti tion have been disputed.
It has also been brought to our notice that a writ petition has been filed before the Patna High Court prior to filing of this application under Article 32 before this Court and the writ petition in the High Court is still pending.
Once this fact was brought to our notice, Mr. Mukhoty for the petitioners submitted that we should direct transfer of the writ petition pending in the High Court to this Court so that both the matters can be heard together.
We are of the view that it would be appropriate that the matter is examined by the High Court.
It would be convenient to the parties to produce material before the High Court on account of proximity; the High Court will be in a position to call for documents and, if necessary, affidavits of parties concerned as and when necessary while dealing with the matter; and without notice and without affording a reasonable opportunity to the parties in the writ petition before the High Court an order of transfer may not be appropriate.
In these circumstances, we have not thought it proper to have the writ petition in the High Court transferred to this Court.
On the other hand, we have considered it expedient and proper in the interest of jus tice to dispose of some aspects of the matter now and leave it open to the petitioner to canvass the other aspects by getting itself impleaded before the High Court in the pend ing writ petition or by the filing of an independent appli cation.
635 There has been no dispute that as a result of the police firing 21 people died and several others were injured.
The heirs and relations of a few of the dead people had been compensated by the State to the tune of Rupees ten thousand as found from the record.
No justification has been indicat ed as to why the said compensation has not been given in every case of death or injury.
It is a normal feature of which judicial notice can be taken that when such unfortu nate consequences emerge even in police firing, the State comes forward to give compensation.
Mr. Jaya Narayan, for the State candidly stated before us that it is not the intention of the State to deprive the relatives of some of the victims who succumbed to the injuries sustained by police firing from benefits of compensation.
Ordinarily in the case of death compensation of Rupees twenty thousand is paid and we see no reason as to why the quantum of compensa tion should be limited to rupees ten thousand.
We may not be taken to suggest that in the case of death the liability of the wrong doer is absolved when compensation of Rupees twenty thousand is paid.
But as a working principle and for convenience and with a view to rehabilitating the dependants of the deceased such compensation is being paid.
We direct that: (1) Without prejudice to any just claim for compensation that may be advanced by the relations of the victims who have died or by the injured persons themselves, for every case of death compensation of Rupees twenty thou sand and for every injured person compensation of Rupees five thousand shall be paid.
Where some compensation has already been paid, the same may be adjusted when the amount now directed is being paid.
These payments be made within two months hence.
(2) In case the petitioner gets implead ed in the pending writ petition before the High Court or filed a separate writ petition and presses for disclosure of the Report of Mr. Kumar, the High Court may examine the question as to whether the report will be made public and in the event of privilege being claimed, the question of privilege will also be examined by the High Court.
(3) We have read the report furnished by the Assistant Commissioner of Scheduled Castes and Scheduled Tribes and since the report is not relevant to the point in issue, it is not necessary to ask the High Court to call for the Report.
We direct that the report to be returned 636 to the appropriate Ministry from where it has been brought.
(4) The investigation of the pending police case shall be completed within three months from now.
In case chargesheet is sub mitted, it would be open to the petitioner or any other aggrieved party to challenge the maintainability of the charges in accordance with law.
The writ petition is disposed of with the aforesaid directions.
The parties shall bear their own costs.
M.L.A. Petition dis posed of.
[/INST]The petitioner an organisation, said to be committed to the upholding of fundamental rights of citizens, filed an application under Article 32 of the Constitution alleging that there was a dispute relating to possession of 26 deci mals of low lying land at Arwal between members of a rich Rajak family on one side and members of nine poor families on the other; and that on April 19, 1986, the members of one community mostly belonging to the backward classes assembled in the compound of Gandhi library at Arwal for holding a peaceful meeting.
At that time, the Superintendent of Police reached the spot with police force, surrounded the gathering and without any warning or provocation opened fire, as a result of which several people were injured and at least 21 persons including children died.
The police, it was also alleged, started a false case implicating several innocent people to cover up the aforesaid atrocities.
The petitioner in the writ petition prayed: (i) Full and proper compensation should be awarded to the victims rela tions of the dead and to those injured by the police firing; (ii) A direction be given for withdrawal of the police case; (iii) Direction for settlement of the land in dispute with the nine poor families; and (iv) transfer of the writ peti tion pending in the Patna High Court to this Court for hearing.
During the pendency of the Writ Petition, the State Government held a judicial inquiry into the aforesaid inci dent by a Member of the Board of Revenue, and, awarded compensation to the heirs and relations of a few of the dead people to the tune of Rs. 10,000 each.
Disposing of the writ petition, this Court, HELD: I.
It would be appropriate that the matter is examined by 632 the High Court.
It would be convenient to the parties to produce material before the High Court on account of proxim ity; the High Court will be in a position to call for docu ments and if necessary, affidavits of parties concerned as and when necessary while dealing with the matter.
Without notice and without affording a reasonable opportunity to the parties in the writ petition before the High Court an order of transfer may not be appropriate.
It would not be proper therefore to have the writ petition in the High Court trans ferred to this Court.
However, the petitioner is at liberty to get itself impleaded before the High Court in the pending writ petition or by filing an independent application.
[634F H] 2.
It is a normal feature that when such unfortunate consequences emerge in police firing, the State comes for ward to give compensation.
No justification has been indi cated as to why the said compensation has not been given in every case of death or injury.
Ordinarily in the case of death compensation of Rs.20,000 is paid and there is no reason as to why the quantum of compensation should be limited to Rs.10,000.
However, in the case of death the liability of the wrong doer is not absolved when compensa tion of Rs.20,000 is paid.
[635B D] 3.(a) Without prejudice to any just claim for compensa tion that may be advanced by the relations of the victims who have died or by the injured persons themselves, for every case of death compensation of Rs.20,000 and for every injured person compensation of Rs.5,000 shall be paid.
Where some compensation has already been paid, the same may be adjusted when the amount now directed is being paid.
[635D F] (b) In case the petitioner presses for disclosure of the report submitted by the Member, Board of Revenue, the High Court may examine the question as to whether the report will be made public and in the event of privilege being claimed the question of privilege will also be examined by the High Court.
[635F G] (c) The investigation of the pending police case shall be completed within three months.
In case charge sheet is submitted, it would be open to the petitioner or any other aggrieved party to challenge the maintainability of the charges in accordance with law.
[636B]
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<s>[INST] Summarize the judgementCivil Appeal No. 1501 of 1978.
Appeal by Special Leave from the Judgment and Order dated 18 1 1978 of the Delhi High Court in Civil Misc.
Petition No. 1120 W of 1977 and 109/78 in Writ Petition No. 585/77.
Soli J. Sorabjee Addl.
General, Girish Chandra for the Appellant.
13 549 SCI/78 736 section T. Desai, B. P. Maheshwari and Suresh Sethi for Respondent No. 1.
A. K. Sen and Vineet Kumar for Respondent No. 2.
ORDER An ad interim order of stay passed by the High Court of Delhi has been challenged before us in this appeal.
We should have hesitated to interfere with an interlocutory order following the usual practice in this Court.
But, where repercussions are incalculable and the basis of the direction; though interlocutory, is obscure, the ends of justice dominate and we may interfere if public interest so dictates.
Here is an order of the Company Law Board under sec.
408(1) of the , which gives a wealth of facts and a variety of reasons to support an ultimate direction which runs thus: "Since all the three conditions referred to in sub section (1) of sec.
408 of the , are established on the facts and circumstances of the case, the Company Law Board hereby appoint officers for three years, in addition to the existing directors of the company: 1.
Shri B. M. Kaul, Member, Railway Board (Retd.) 5 J 4 Jawahar Nagar, Jaipur.
Shri A. K. Mazumdar, Chief Secretary, Orissa Govt.
(Retd.) 26/2, Dover Road, Apartment No. 4, Calcutta 19. 3.
Shri P. K. Choksi, Senior Partner, Price Water house Pest & Co., B 4, Gillander House, Calcutta 1. 4.
Shri section K. Mitra, President, Institute of Cost & Works Accounts of India, 14 A/6 Western Extension Area, Karol Bagh, New Delhi 5. 5.
Shri P. A. section Rao, Formerly President of the Institute of Company Secretaries of India, C 7/7, Vasant Vihar, New Delhi.
Shri M. C. Bhatt, Joint Secretary, Govt.
of India (Retd.) B 22, Defence Colony, New Delhi 24. 7.
Shri Triloki Nath Sharma, Business Executive, 247, Mohan Nagar, G. T. Road, Sahibabad, Ghaziabad (U.P.) 737 The Company Law Board direct further under sub section (6) of sec.
408 of the Act that Shri B. M. Kaul will act as Chairman of the Board of Directors of the Company.
In accordance with the order passed by the Delhi High Court on 24th August, 1977, referred to hereinbefore the implementation of this order will be subject to any order that may be passed by the Delhi High Court in the matter pending before it." This order, which inducted seven additional directors was based on the ground that the affairs of the company in question "are being conducted in a manner which is prejudicial to the interests of the company and to public interest." The High Court, after hearing counsel on both sides, passed a laconic order that: "We consider that the proper order to be made, in view of the circumstances of the case, is to stay the operation of the order of the Company Law Board, dated 17th December, 1977, except as regards Shri P. K. Choksi, Shri section K. Mitra and Shri P. A. Rao, and also to direct that the said three gentlemen will not vote at the meetings of the Board of Directors till the disposal of the writ petition.
We order accordingly.
" A company of considerable financial dimensions and involved in operations using public resources as investment, naturally becomes the concern not merely of the Company Law Board but also of the economic process of the country.
The specialised body with responsibility to watchdog corporate process, is the Company Law Board.
When it investigates and reaches a definite conclusion and makes a consequential direction, it is entitled to prima facie respect unless there are glaring circumstances to the contrary.
We do not wish to make any observations on the merits of the matter since the High Court is seized of the case.
It may well be that the order of the Board may be vitiated by infirmities, legal or other.
It may also be that the reasoning of the Board and the factual foundation for it is sound.
In such situations, acting at an interlocutory stage, the benefit of reasonable doubt belongs to the specialised body.
Of course, as stated earlier, if there are good grounds to strike down the order, certainly the High Court has jurisdiction to stay its operation.
However, we find nothing stated in the order itself indicating why the High Court prima facie thought it necessary substantially to stay the operation of the Company Law Board 's order of induction of seven persons as directors.
Nor have we any light regarding the total eclipse of four directors and the partial eclipse of the other three.
Unfortunately, the inscrutable face of a sphinx does not go well with the judicial process.
Whatever might have been 738 the basis of the High Court 's order we do not make any comments thereon we are inclined to nullify the interim stay.
Our inclination is explained by the prefatory observations we have earlier made in this order.
To expatiate more may prejudice one side or the other.
To indicate this much is obligatory to explicate ourselves.
There was some argument at the Bar about an order under sec.
18AA of the Industries (Development and Regulation) Act, 1951, and its impact upon the order impugned before us.
Maybe, by virtue of that appointment, the entire company comes under the control of the authorised person appointed under that provision.
It is not for us to explore here the effect and import of the order of the Central Government under section 18AA and we desist from doing so.
All that we need do and that we can do in the present appeal is to allow it so that the Company Board 's direction in regard to seven additional directors will come into full force until the final decision of the High Court.
We allow the appeal.
We may make it clear that the learned Additional Solicitor General did assure the court that nothing which will stultify the two writ petitions before the High Court will be done by the Company Law Board or the Central Government.
We hope the High Court will dispose of the case very expeditiously.
S.R. Appeal allowed.
[/INST]The appellant runs a hotel in which meals are served to non residents also in the restaurant located in the hotel.
The sales tax authorities treated a portion of the receipts as representing the price of foodstuffs served and levied tax.
The High Court affirmed the view of the sales tax authorities.
On the question whether the transaction constituted sale of foodstuffs.
Allowing the appeals ^ HELD. 1.
Service of meals to non residents in the restaurant of 'the appellant is not taxable under the Bengal Finance (Sales Ta%) Act 1941, as extended to the Union Territory of Delhi.
This is so whether a charge is imposed for the meal as a whole or according to the dishes separately ordered.
[562 F; 2.
In State of Punjab vs M/s. Associated Hotels of India ; this Court held that there was no sale when food and drink were supplied to guests residing in the hotel.
The Court pointed out that the supply of meals was essentially in the nature of a service provided to the guests and could not be identified as a transaction of sale.
This Court declined to accept the position that the Revenue was entitled to split up the transaction into two parts, one of service and the other of sale of foodstuffs.
If that be true in respect of hotels, a, similar approach seems to be called for on principle in the case of restaurants.
Like the hotelier, a restaurateur provides many services in addition to the supply of food.
He provides furniture and furnishings, linen, crockery and cutlery, and he may add music, an area for floor dancing and in some cases a floor show.
The classical legal view being that a number of services are concomitantly provided by way of hospitality, the supply of meals must be regarded as ministering to a bodily want or to the satisfaction of a human need.
No reason has been shown for preferring any other view.
[562 B, 560 F G, 562 C] State of Punjab vs M/s. Associated Hotels of India Ltd. ; applied.
M/s. Associated Hotels of India Ltd., Simla vs Excise and Taxation Officer Simla not approved.
Municipal Corporation of Delhi vs Laxmi Narain Tandon and Another not approved.
Crisp vs Pratt [1639] Cro.
Car 549, Parker vs Flint [1699] 12 Mod.
254 Newton v .
Trigg 3 Mod.
327, Saunderson vs Rowles Electa B. 558 Merrill vs James W. Hodson , and Mary Nisky vs Child Company SO A.L.R. 227 referred.
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<s>[INST] Summarize the judgementAppeal No. 5434 of 1985.
From the Judgment and Order dated 11.8.1987 of the Punjab and Haryana High Court in Civil Revision No. 1048 of 1986, A.K Gupta for the Appellants.
Vikram Mahajan, Gopi Chand and K.K. Gupta for the Respondent.
The Judgment of the Court was delivered by VERMA, J.
The suit premises in Chandigarh was let out by the appellant to the respondent, Smt.
Satya Bhalla on 1.11.1974 on a monthly rent of Rs. 550 solely for residential purpose.
However, the respondent 's husband, a lawyer established his office in a part of the suit premises and started using the same for that purpose.
The appellant landlord filed a petition before the Rent Controller in February, 1983 seeking eviction of the respondent tenant on several grounds including the ground contained in section 13(2) (ii) (b) of the East Punjab Urban Rent Restriction Act, 1949 i.e. the use of the building for a purpose other than that for which it was leased.
The Rent Controller made an order of eviction of the respondent tenant on the ground of change of user contained in section 13(2)(ii) (b).
The tenant 's appeal was dismissed by the appellate authority which affirmed the order of eviction made by the Rent Controller.
A further revision to the High Court has been allowed by the learned single Judge and the order of eviction has been set aside.
The High Court has held that the building let out as a 'residential building became a 'scheduled building by use of a part thereof as lawyer 's office by the tenant 's husband; and therefore, the ground of eviction was not available.
The order of eviction made in the landlord 's favour was, therefore, set aside.
Hence this appeal by the landlord by special leave.
The learned counsel for the appellant contended that the ground of change of user contained in section 13(2) (ii) (b) is clearly made out from the facts and the High Court has erred in setting aside the order of eviction.
174 In reply Shri V.C. Mahajan, learned counsel for the respondent tenant, advanced several arguments.
He submitted that the landlord had waived the ground of change of user by acquiescence to use of a part of the premises as lawyer 's office.
His next submission is that the ground in section 13(3) (ii) (b) is not available unless the change of user is of substantial if not the entire building and, therefore, mere use of a small part of the residential building as lawyer 's office does not constitute such change, learned counsel also submitted that this is not a fit case for interference with the High Court 's order under Article 136 of the Constitution.
Having heard both sides, we are satisfied that this appeal has to be allowed.
The High Court 's interference in revision with the order of eviction made by the Rent Controller and affirmed by the appellate authority, was wholly unjustified.
There is no merit in Shri Mahajan 's argument of waiver or acquiescence by the landlord.
Before the Rent Controller the tenant had pleaded estoppel against the landlord, which after due consideration was rightly rejected by the Rent Controller.
That finding of the Rent Controller was not assailed by the tenant either before the appellate authority or in the High Court.
On merits also, this plea is untenable since no such conduct of the landlord is shown.
The argument is, therefore, rejected.
We also do not find any substance in the contention that interference under Article 136 is not warranted, in case it is found that the High Court set aside the order of eviction on a misconstruction of the law applicable in the present case.
The only question, therefore, is whether on the proved facts, no longer in controversy, the ground in section 13(2) (ii) (b) is made out.
The material provisions in the East Punjab Urban Rent Restrictions Act, 1949 with reference to which the contention of Shri Mahajan has to be considered, are the following "2.
Definitions. . . . (a) 'building ' means any building or part of a building let for any purpose whether being actually used for that purpose or not, including any land, godowns, outhouses, or furniture let therewith but does not include a room in a hotel, hostel or 175 boarding house; xxx xxx xxx (d) 'non residential building" means a building being used solely for the purpose of business or trade: Provided that residence in a building only for the purpose of guarding it shall not be deemed to convert a "non residential ' building ' to a 'residential building": xxx xxx xxx (g) 'residential building" means any building which is not a non residential building; (h) 'scheduled building" means a residential building which is being used by a person engaged in one or more of the professions specified in the Schedule to this act, partly for his business and partly for his residence; xxx xxx xxx 13.
Eviction of tenant (1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencemen t of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this sec tion.
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf.
If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied (ii) that the tenant has after the commencement of this Act without the written consent of the landlord (a) transferred his right under the lease or sublet the entire building or rented land or any portion thereof; or 176 (b) used the building or rented land for a purpose other than that for which it was leased, or the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application: Provided that the Controller may give 'the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed three months in the aggregate." Shri Mahajan contended that to constitute the ground under section 13(2) (ii) (b), the change in user should be in respect of at least a substantial part of the building if not the entire building.
The comparison of sub clause (b) with sub clause (a) shows that the omission of the word 'entire ' before the word 'building ' in sub clause (b) when the word 'entire ' has been used before the word 'building ' in sub clause (a) is deliberate.
For this reason, the change in user of the building required to constitute the ground under sub clause (b) need not be of the entire building, the word 'entire ' being deliberately omitted in sub clause (b).
Faced with this difficulty, Shri Mahajan submitted that the change of user should be of a substantial part of the building let out even though not of the entire building.
This argument also cannot be accepted in this context.
The definitions in section 2 of the Act show that even though a 'scheduled building ' continues to be a residential building as defined in section 2(g), a residential building of which even a part is used for a scheduled purpose, becomes and is called a 'scheduled building ' when user of the building is significant or the criterion.
Thus, where user of a building is of significance, a distinction is made in the Act between residential building which is not a scheduled building and that which is a scheduled building.
This is so in section 4 of the Act dealing with determination of fair rent wherein fixation of rent is made on the basis of user and for that purpose a 'scheduled building ' is treated differently from a residential building which is not a scheduled building.
Same is the position with regard to the ground of eviction contained in section 13(2) (ii) (b) wherein change in user of the building is alone significant for constituting the ground.
177 Accordingly, use of the building for a purpose other than that for which it was leased, without the written consent of the landlord is a ground of eviction.
The object clearly is that the parties must remain bound by the terms on which the building is let out, including the condition relating to its use for the purpose for which it was leased.
In other words, breach of the covenant regarding the kind of user of the building let out is the ground of eviction contained in section 13(2) (ii) (b).
It is clear that if the change in user of the building is of the kind that it makes the residential building let out for residential purpose alone change its character and become a 'scheduled building ' as defined in section 2(h) of the Act without the written consent of the landlord, the ground of eviction under section 13(2) (ii) (b) is made out.
This test is fully satisfied in the present case and the order of eviction was made by the Rent Controller and affirmed by the appellate authority on this basis. 'The High Court misconstrued the provisions to take the contrary view.
A Division Bench of the Punjab and Haryana High Court in Telu Ram vs Om Parkash Garg while dealing with section 13(i) (ii) (b) at the Act mentioned one of its conclusion in para 21 as under '(b) that if the result of the use of even a small portion of a building is such that the category of the premises is changed from residential, non residential and scheduled, and it becomes a category different from the one for which the same had been let, the clause would be attracted;" This is how this provision appears to have been understood at least eversince than and the people in the State have arranged their affairs on that basis.
Apart from the fact that this view commends to us as the correct view, the desirability of continuing the settled view is also a reason in its favour.
Shri Mahajan referred to the decision of this Court in Sant Ram vs Rajinder Lal and Ors., 1978(2) RCR 601.
That case is distinguishable.
In that decision the purpose of the lease was not spelt out precisely while letting out a small premises to a cobbler for his business where he sometimes stayed overnight after the day 's work while he went to his home on 178 holidays.
It was on these facts that the tenant staying overnight in the shop on some working days was not found to constitute the ground of change of user under section 13(2) (ii) (b) of the Act.
That decision does not assist the respondent tenant in this case.
Reference was also made to Dr. Sewa Singh vs Smt.
Ravinder Kaur and another, [1971] '3 SCC 981.
That judgment did not consider this question as it was not raised.
The ground therein was that the High Court was not justified in taking the view in revision for the first time that the user of a part of the premises for a particular purpose was casual.
No doubt, the user of a part of the residential building for the profession of a medical practitioner was involved and the definition of 'scheduled building ' in section 2(h) of the Act was referred, but this point was neither raised nor considered.
The decision in Dr. Sewa Singh cannot be treated as an authority for the view that change of user of a part of a residential building let out for use solely as a residence, for a scheduled purpose without the written consent of the landlord does not constitute the ground for eviction under section 13(2) (ii) (b) or that the ground of eviction based on personal need of the landlord contained in section 13(3) (i) (a) is not available to the landlord for that reason.
If the logical inference from Dr. Sewa Singh appears to be that, then, with respect, we are unable to agree with the same.
As a result of the above discussion, this appeal is allowed and the impugned order passed by the High Court is set aside resulting in restoration of the order of eviction made by the Rent Controller and affirmed by the appellate authority.
The respondent will also pay cost to the appellant.
Counsel 's fee Rs. 3,000.
V.P.R. Appeal allowed.
[/INST]The appellant who was an Assistant Engineer in Public Works Department was transferred on deputation to the Bangalore City Corporation under the City Bangalore (Cadre and Recruitment) Regulation, 1971 which permitted 75% of vacancies in the cadre to be filed in by deputation from P.W.D.
In 1977, the Karnataka Municipal Corporation Rules were framed and the appellant was absorbed in the Corporation.
On being challenged in a Writ Petition the High Court struck down the Rules and set aside the absorption of the appellant in the Corporation.
The Government issued an ordinance removing the infirmity in the Rules.
It was replaced by the Karnataka Municipal Corporation Amendment Act, 1981.
In course of time the appellant was promoted as Executive Engineer, Superintending Engineer and Addl.
Chief Engineer.
Ile earlier Writ Petitioners approached the High Court by way of a Contempt Petition against the non implementation of its order.
Faced with this situation, the Government repatriated the appellant to his parent department,just a few months before his retirement.
The appellant approached the Administrative Tribunal, which dismissed his application as infructuous in view of the fact that the matter was pending before the High Court and in any case the appellant would get his pension either from the State Government or the Corporation.
Hence these appeals.
55 Allowing the appeals, this Court, HELD: Under the Karnataka Municipal Corporation Amendment Act, 1981 the basis on which the Karnataka Municipal Rules, 1977 were declared void was removed and appointments made or continued before the commencement of the Amendment Act were declared to be valid and were always be deemed to have been validly made for all purposes as if the said appointments had been made under the Principal Act as amended by the Act.
It is not in dispute that the State Legislature is competent to make the Act.
When the Act was made and it validated past acts done or proceedings taken, it was valid Act and removed the defects declared by the Court.
It must be deemed and shall always be deemed that the appointment of the appellant as Addl.
Chief Engineer is legal and valid.
Unfortunately, the Act was not brought to the notice of the High Court when the direction to repatriate the appellant was made by the High Court.
But the failure to bring to the notice of the court does not have the effect of nullifying the valid action legislatively taken.
Consequently the appellant must be deemed to have been retired from service as Addl.
Chief Engineer of the Corporation.
The appellant is entitled to all the consequential benefits, all pensionary benefits etc.
from the Corporation.
[58H; 59 A D] Shri Prithvi Cotton Mills Ltd. & Anr.
vs Broach Borough Municipality & Ors.
, ; Janapada Sabha, Chhindwara, etc.
vs Central Provinces Syndicate Ltd. & Anr., etc.
; , and Yadlapati Venkateswarlu vs State of Anadhra Pradesh & Anr., [19901 Suppl.
1 SCR 381, relied on.
</s>
|
<s>[INST] Summarize the judgementNo. 11 of 1967.
Petition under article 32 of the Constitution of India for the enforcement of fundamental rights.
N. C. ChatterJee, K. B. Rohtagi and section BalakriShnan, for Petitioner.
C. K. Daphtary, Attorney General, A. section Nambiar, R. H. Dhebar and section P. Nayar, for the respondents.
K. B. Rohtagi, for the interveners.
723 Ramaswami, J.
In this case the petitioner, C. A. Rajendran has obtained rule from this Court calling upon the respondents to show cause why a writ in the nature of mandamus under article 32 of the Constitution should not be issued for quashing the office Memorandum dated November 8, 1963 which is Annexure C ' to the Writ Petition, and for directing respondent No. 1 to restore the orders passed by it in Office Memorandum No. 2 /11/ 55 RPS dated May 7, 1955 and No. 5/4/55 SCT (1) dated January 4, 1957.
Cause has been shown by the Attorney General on behalf of the respondents to whom notice of the rule was ordered to be given.
The petitioner is a permanent Assistant in Grade IV (Class 11, non gazetted ministerial) of the Railway Board Secretariat Service.
He was initially appointed as Accounts Clerk on February 6, 1953 in Southern Railway.
He was appointed as an Assistant on October 22, 1956 in the Railway Board and confirmed as Assistant on April 1, 1960.
The pay scale of the Assistant 's grade is Rs. 210 530.
The next post to which the petitioner claims promotion is that of the Section Officer in the same service.
The post of Section Officer is classified as Class II, Grade 11, Gazetted and it carries a pay scale of Rs. 350 900.
The Railway Board Secretariat Service (Reorganisation and Reinforcement) Scheme was drawn up in consultation with the Ministry of Home Affairs and introduced with effect from December 1, 954 with the approval of the Union Public Service Commission.
According to the new Scheme the Railway Board Secretariat Service consists of the following grades: "Grade IV Assistants in the scale of Rs. 210 530 (Class III non gazetted) (to which Petitioner belongs).
Grade III Section Officers in the scale of Rs. 350 900 (Class II gazetted) with effect from 1 7 1959.
(Section Offcers grade).
Grade II Amalgamated with effect from 1 7 1959 as Section Officers grade.
Grade I Assistant Directors/Under Secretaries in the scale of Rs. 900 1,250.
(Grade III was called, before 1 7 59, Assistant Superintendent in the scale of Rs. 275 500 and the scale of Grade II Superintendents was Rs. 530 800).
" L/P(N)7SCI 7 724 Recruitment to permanent vacancies of Grade III of the Rail way Board Secretariat Service are made by the following three methods as per para 18 of the Railway Board Secretariat Service Scheme: "(a) 33 1/3% by direct recruitment on the results of the combined Examinations held by the UPSC for the IAS, IPS & other Central Services Class I and Class 11.
(b) 33 1/3% by promotion on the basis of seniority subject to the rejection of the unfit.
(c) 33 1/3% by limited competitive examination on the basis of a test to be prescribed and conducted, by the UPSC for Assistants/Stenographers Grade 11 between 5 years and 10 years of service in the grade in the Board 's office.
Note For the years 1961 65 only 1/4 of the substantive vacancies were to be filled by direct recruitment on the results of the competitive examination under item (a) above.
In 1955 the Government issued Office Memorandum dated May 7, 1955 (Annexure 'E ' to the Writ Petition) whereby it reaffirmed its decision that there will be no reservation for Scheduled Castes and Scheduled Tribes in posts filled by promotion but that certain concessions were to be given to Scheduled Castes and Scheduled Tribes in the matter of promotion.
The concessions were as follows: "(i) While there would be no reservation for Scheduled Castes and Scheduled Tribes in regard to vacancies filled by promotion, where the passing of tests or examinations had been laid down as a condition for promotion, the authority prescribing the rules for the tests or examinations might issue suitable instructions to ensure that the standard of qualification in respect of members of Scheduled Castes and Scheduled Tribes was not unduly high.
(ii) Where promotions were made on the basis of seniority subject to fitness, cases of persons belonging to Scheduled Castes and Scheduled Tribes were to be judged in a sympathetic manner without applying too rigid a standard and cases of supersession of Scheduled Castes and Scheduled Tribes employees reviewed at a high level viz., if a, Scheduled Caste/Scheduled Tribes employee was superseded in the matter of promotion to Class I and II posts filled on the basis of seniority subject to fitness, the prior orders of the Minister or 725 Deputy Minister concerned were to be taken.
If, however, the supersession was in a Class III or IV post filled on the basis of seniority subject to fitness, the matter was to be reported to the Minister or Deputy Minister concerned within a month of the decision.
(Ministries were given powers to modify this procedure to suit their requirements with the approval of the Minister in charge)" In 1957 the Government decided that there should be provision for reservations for Scheduled Castes and Scheduled Tribes in all grades of services filled by promotion through competitive examination limited to departmental candidates, the quantum of reservation being 12 1/2% for Scheduled Castes and 5% for Scheduled Tribes.
The order of the Government is contained in Office Memorandum dated January 4, 1957, Annexure 'D ' to the Writ Petition.
In April, 1959 the Ministry of Railways issued an order laying down that in the case of any promotion from Class IV to Class III and from Class III to Class 11 and for any promotion from one grade to another in Class 111, where such promotions were made by "selection" and not on the basis of " seniority cum fitness", there should be reservation for the Scheduled Castes and Scheduled Tribes on the same scale as in the direct recruitment.
This order was challenged by Rangachari by a Writ Petition under article 226 of the Constitution which was allowed by the Madras High Court and a writ in the nature of mandamus was granted restraining the Railway Authorities from giving effect to the order of the Railway Board directing reservation of selection posts in Class III of the Railway service in favour of the members of the Scheduled Castes and Scheduled Tribes.
An appeal was brought to this Court by the General Manager, Southern Railway (The General Manager, Southern Railway vs Rangachari)(1) against the judgment of the Madras High Court and it was held in the majority judgment of this Court that the impugned circulars of the Railway Board were within the ambit of article 16(4) of the Constitution and the appeal must succeed.
Consequent upon the judgment in this case the matter was reviewed by the Union Government and it was advised that there was no constitutional compulsion to make reservations for Scheduled Castes and Scheduled Tribes in posts filled by promotion and the question whether the reservation should be continued or withdrawn Was entirely a matter of public policy.
The Union Government came to the conclusion that there should not be any special treatment of Government servants belonging to Scheduled Castes and Scheduled Tribes in the matter of promotions particularly in promotion to Class I and Class II services which require higher degree of efficiency and (1) ; L/P(W)78CI 7(a) 726 responsibility.
As a result of this review of the matter the Central Government issued a memorandum dated November 8, 1963 (Annexure 'C ' to the Writ Petition) which reads as follows: "In posts filled by promotion through competitive examinations limited to departmental candidates, reservations at 12 1/2 per cent and 5 1/2 per cent of vacancies were provided for Scheduled Castes and Scheduled Tribes respectively vide this Ministry 's O.M. No. 5/4/ 55 SCT(1) dated 4th January, 1957 and para 3(iii) of the Brochure issued with O.M. No. 1/2/61 SCT(1) dated 27th April, 1962.
In regard to promotions on the basis of seniority subject to fitness, and those by selection no reservations were provided, but certain concessions were allowed to persons belonging to scheduled ca stes and scheduled tribes vide Ministry of Home Affairs Office Memorandum No. 2/11/55 RPS dated 7th May, 1955 (as amended from time to time), No. 1/1/59 RPS dated 17th March, 1958 and No. 1/4/60 RPS dated 5th March 1960 and paras 20 and 21 of the aforesaid brochure.
The Government of India have reviewed their policy in regard to reservations and other concessions granted to scheduled castes and scheduled tribes in posts filled by promotion and have, in supersession of all previous orders in this regard, decided as follows: (1) Class I and Class II appointments: (a) There will be no reservation for Scheduled Castes and Scheduled Tribes in appointments made by promotion to a Class 11 or a higher service of post whether on the basis of seniority cum fitness, selection, or competitive examination limited to departmental candidates.
(b) In the case of promotions made in or to Class I or Class II on the basis of seniority subject to fitness, cases involving supersession of Scheduled Castes and Scheduled Tribe Officers, will, however, continue to be submitted for prior approval of the Minister or Dy.
Minister concerned.
(2) Class III and Class IV appointments: (a) In the cases of Class III and Class IV appointments, in grades or services to which there is no direct recruitment whatever, there will be reservation at 121 and, 5 per cent vacancies for Scheduled Castes and Scheduled tribes respectively in promotions made by (i) selection or (ii) on the results of competitive examinations limited to departmental candidates.
727 (b) Lists of Scheduled Castes and Scheduled Tribes Officers should be drawn up separately to fill the reserved vacancies; officers belonging to these classes will be adjudged separately and not along with other officers and if they should be included in the list irrespective of their merit as compared to that of the other officers '.
Promotions against reserved vacancies will continue to be subject to the candidates satisfying the prescribed minimum standards.
(e) There will be no reservation in appointments made by promotion on the basis of seniority subject to fitness; but cases involving supersession of Scheduled Caste and Scheduled Tribe Officers, if any, will as at present be reported within a month to the Minister or Deputy Minister concerned for information.
The above decisions take effect from the date of issue of these orders except where selections by the Departmental Promotion Committee under the old orders have already been made, or rules for a competitive examination published.
The contention of the petitioner is that this Office Memorandum (Annexure 'C ' to the Writ Petition) violates the guarantee given to backward classes under article 16(4) of the Constitution and is illegal and ultra vires.
It was alleged that the impugned Office Memorandum (Annexure 'C ') made a discrimination by making provision for reservations in certain types of Class III and IV Services only and not in Class II and I Services, and the classification was discriminatory and there was no rational nexus sought to be achieved by the impugned Office Memorandum.
The argument was also stressed that, Art ' 16(4) was not an exception engrafted on article 16, but was in itself a fundamental right granted to Scheduled Castes and Scheduled Tribes and backward classes and as such it was untrammeled by any other provision of the Constitution.
The petitioner accordingly prays for the grant of a writ in the nature of mandamus quashing the Office Memorandum (Annexure 'C ') and directing respondent No. 1 to restore retrospectively the orders made in its Office Memoranda No. 2/ 11/55 R.PS dated May 7, 1955 and No. 5/4/55 SCT I dated January 4, 1957 and, to consider the claim of the petitioner as member of the Scheduled taste for promotion as Section Officer in the Railway Board Secretariat Service.
Article 14 of the Constitution states: "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
" 728 Article 15 provides: "(1).
The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) (3) (4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Sche duled Castes and the Scheduled Tribes.
" Article 16 is to the following effect: "(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place 'of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
(3) (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the 'opinion of the State, is not adequately represented in the services under the State.
(5) Article 335 reads as follows: "The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.
" The first question to be considered in this case is whether there is a constitutional duty or obligation imposed upon the Union Government to make reservations for Scheduled Castes and Scheduled Tribes either at the initial stage of recruitment and at the stage of promotion in the Railway Board Secretariat Service Scheme.
The relevant law on the subject 'is well settled,.
Under article 16 of the Constitution, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State or to promotion from one office to a higher office thereunder.
Articles 14, 15 and 16 from part of the 729 same constitutional code of guarantees and supplement each other.
In other words, article 16 of the Constitution is only an incident of the application of the concept of equality enshrined.
in article 14 thereof.
It gives effect to the doctrine of equality in the matter of appointment and promotion.
It follows therefore that there can be a reasonable classification of the employees for the purpose of appointment and promotion.
To put it differently, the equality of opportunity guaranteed by article 16(1) means equality as between members of the same class of employees, and not equality between members of separate, independent classes.
Dealing with the extent of protection of article 16(1) of the Constitution, this Court stated in General Manager, Southern Railway vs Rangachari(1) at pages 596 597 of the Report as follows: "It would, be clear that matters relating to employment cannot be confined only to the initial matters prior to the act of employment.
The narrow construction would confine the application of article 16(1) to the initial employment and nothing else; but that clearly is only one of the matters relating to employment.
The other matters relating to employment would inevitably be the provision as to the salary and periodical increments therein, terms as to leave, as to gratuity, as to pension and as to the age of superannuation.
These are all matters relating to employment and they are, and must be.
deemed to be included in the expression 'matters relating to employment ' in Article 16(1).
What Article 16(1) guarantees is equality of opportunity to all citizens in respect of all the matters relating to employment illustrated by us as well as to an appointment to any office as explained by us.
The three provisions Article 16(1), article 14 and article 15(1) form part of the same constitu tional code of guarantees and supplement each other.
If that be so, there would be no difficulty in holding that the matters relating to employment must include all matters in relation to employment both prior and subsequent, to the employment which are incidental to the employment and form part of the terms and conditions of such employment.
" The Court further observed in that case: "Article 16(2) prohibits discrimination and thus assures the effective enforcement of the fundamental right of equality of opportunity guaranteed by Article 16(1).
The words, in respect of any employment used in Article 16(2) must, therefore, include all matters relating to employment as specified in Article 16(1).
There fore, we are satisfied that promotion to selection posts is included both under Article 16(1) and (2)".
(1) ; , 730 It is manifest that the scope of cl.
(4) of article 16 is not co extensive with the guarantee of equality offered to all citizens by cl.
(1) of that Article.
In other words, cl.
(4) of article 16 does not cover the entire field covered by cls.
(1) and (2) of that Article.
For instance, some of the matters relating to employment in respect of which equality of opportunity has been guaranteed by cls.
(1) and (2) do not fall within the mischief of the exception cl.
As regards the conditions of service relating to employment such as salary, increment, gratuity, pension and age of superannuation, there can be no exception even in regard to the backward classes of citizens.
The only matter which cl.
(4) covers is a provision for the reservation of appointments in favour of a backward, class of citizens.
It is well settled that cl.
(4) of Art.16 is an exception clause and is not an independent provision and it has to be strictly construed (See the judgment of this Court in General Manager, Southern Railway vs Rangachari)(2).
It is also apparent that the language of article 16(4) has to be interpreted in the context and background of article 335 of the Constitution.
In other words, in making a provision for reservation of appointments or posts the Government has to take into consideration not only the claims of the members of the backward classes but also the maintenance of efficiency of administration which is a matter of paramount importance.
In this connection, GaJendragadkar, J., as he then was, speaking for the majority in General Manager, Southern Railway vs Rangachari,(1) observed at page 606 of the Report as follows: "It is true that in providing for the reservation of appointments or posts under article 16(4) the State has to take into consideration the claims of the members of the backward classes consistently with the maintenance of the efficiency of administration.
It must not be forgotten that the efficiency of administration is of such paramount importance that it would be unwise and impermissible to make any reservation at the cost of efficiency of administration.
That undoubtedly is the effect of article 335.
Reservation of appointments or posts may theoretically and, conceivably mean some impairment of efficiency; but the risk involved in sacrificing efficiency of administration must always be borne in mind when any State sets about making a provision for reservation of appointments or posts.
It is also true that the reservation which can be made under article 16(4) is intended merely to give adequate representation to backward communities.
It cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees.
In exercising the powers under article 16(4) the problem of adequate representation of the back ward class of citizens must be fairly and (1) [1962) 2 S.C.R. 586. 731 objectively considered and an attempt must always be made to strike a reasonable balance between the claims of backward classes and the claims of other employees as well as the important consideration of the efficiency of administration.
" The same view has been reiterated in a later case, M. R. Balaji and Others vs State of Mysore(1), in which Gajendragadkar, J., as he then was, speaking for the unanimous Court stated as follows: "Whilst we are dealing with this question, it would be relevant to add that the provisions of article 15(4) are similar to those of article 16(4) which fell to be considered in the case of The General Manager, Southern Railway vs Rangachari ([1962] 2 S.C.R. 586).
In that case, the majority decision of this Court held that the power of reservation which is conferred on the State under article 16(4) can be exercised by the State in a proper case not only by providing for reservation of appointments, but also by providing for reservation of selection posts.
This conclusion was reached on the basis that it served to give effect to the intention of the Constitution makers to make adequate safeguards for the advancement of Backward Classes and to securer their adequate repre sentation in the Services.
The judgment shows that the only point which was raised for the decision of this Court in that case was whether the reservation made was outside article 16(4) and that posed the bare question about the construction of article 16(4).
The propriety, the reasonableness or the wisdom of the impugned order was not questioned, because it was not the respondent 's case that if the order was justified under article 16(4), it was a fraud on the Constitution.
Even so, it was pointed out in the judgment that the efficiency of administration is of such a paramount importance that it would be unwise.
and impermissible to make any reservation at the cost of efficiency of administration; that, it was stated, was undoubtedly the effect of article 335.
Therefore, what is true in regard to article 15(4) is equally true in regard to article 16(4).
There can be no doubt that the Constitution makers assumed, as they were entitled to, that while making adequate reservation under article 16(4), care would be taken not to provide for unreasonable, excessive or extravagant reservation, for that would, by eliminating general competition in a large filed and by creating wide spread dissatisfaction amongst the employees, materially affect efficiency.
Therefore, (1) [1963] Supp. 1 S.C.R. 439. 732 like the special provision improperly made under article 15(4), reservation made under article 16(4) beyond the permissible and legitimate limits would be liable to be challenged as a fraud on the Constitution.
" In the present case the respondents have alleged in the counteraffidavit that after the decision of Rangachari 's(1) case the Union Government reviewed the whole position and decided that there should not be any special treatment to Government servants belonging to the Scheduled Castes and Scheduled Tribes in the matter of promotion to Class I and Class II Services which require higher degree of efficiency and responsibility.
It was stated in the counter affidavit that the Union Government was satisfied that reservation quotas of promotion were harmful from the point of view of efficiency of Railway Service and therefore the Government issued the memorandum dated November 8, 1963 withdrawing the reservation quotas for Scheduled Castes and Scheduled Tribes officers made in the previous Government orders.
On behalf of the petitioner Mr. N. C. Chatterjee submitted the argument that the provision contained in article 16(4) of the Constitution was in itself a fundamental right of Scheduled Castes and, Scheduled Tribes and it was not open to the Government to withdraw the benefits conferred on Scheduled Castes and Scheduled Tribes by the Government orders dated May 7, 1955 and January 4, 1957.
The learned Counsel based his argument on the following observations of Subba Rao, J., as he then was, in the minority judgment of this Court in T. Devadasan vs The Union of India and Another(1): "The expression 'nothing in this article ' is a legislative device to express its intention in a most emphatic way that the power conferred thereunder is not limited in any way by the main provision but falls outside it.
It has not really carved out an exception, but has preserved a power untrammelled by the other provisions of the Article.
" But the majority judgment of this Court in that case took the view that article 16(4) was an exception and it could not be so construed as to render nugatory or illusory the guarantee conferred by article 16(1).
It was pointed out that though under article 16(4) of the Constitution a reservation of a reasonable percentage of posts for members of the Scheduled Castes and Tribes was within the competence of the State, the method evolved by the Government must be such as to strike a reasonable balance between the claims of the backward classes and claims of other employees, in order to effectuate the guarantee contained in article 16(1).
and for (1) ; (2) ; , at page 700.
733 this purpose each year of recruitment would have to be considered by itself.
Accordingly, the Court struck down the "Carry forward rule" on the ground that it contravened articles 14, 16 and 335 of the Constitution.
In any case, even the minority judgment of Subba Rao, J. does not support the contention of Mr. N. C. Chatterjee that article 16(4) confers a right on the backward classes and not merely a power to be exercised at the discretion of the Government for making a provision for reservation of appointments for backward classes which, in its opinion, are not adequately represented in the Services of the State.
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, article 16(4) is an enabling provision and confers a discretionary power on the State to make a reservation 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.
We shall next deal with the contention of the petitioner that there is discrimination between the employees belonging to Scheduled Castes and Scheduled Tribes in the Railway Service and similar employees in the Central Secretariat Service.
It was said that the competitive departmental examination for promotion to the grade of Section Officers was not held by the Railway Board for the years 1955 1963.
On the contrary, such examinations were held for the Central Secretariat Service and 74 employees belonging to Scheduled Castes and Scheduled Tribes secured the benefit of the provisions of reservation.
In our opinion, there is no substance in this contention.
The petitioner being an employee of the Railway Board ' is governed by the rules applicable to the officers in the Service to which he belongs.
The employees of the Central Secretariat Service belong to a different class and it is not possible to accept the argument that there is any discrimination against the petitioner and violation of the guarantee under article 14 of the Constitution.
It was also contended by Mr. N. C. Chatterjee that the im pugned order, Annexure 'C ', arbitrarily discriminates among Class III employees themselves and Class IV employees them selves.
Under the impugned order reservation is kept for appointments for which there is direct recruitment and for promotions made by (1) selection, or (2) on the result of a competitive examination limited to departmental candidates.
There is no reservation for appointments made by promotion on the basis of seniority cum fitness.
In our opinion, there is no justification for this argument as it is well established that there can be a reasonable 734 classification of employees for the purpose of appointment by promotion and the classification as between direct recruits and promotees is reasonable (See the decisions of this Court in Mervyn Coutindo vs Collector of Customs(1), Bombay, and in section G. Jaisinghani vs Union of India(2).
A grievance was also made by Mr. N. C. Chatterjee that there is discrimination as between Classes I and II where there is no reservation and Classes III and TV where reservation has been made for Scheduled Castes and Scheduled Tribes.
The respondent stated in the counter affidavit that in Classes I and II posts a higher degree of efficiency and responsibility was required and therefore reservation was considered harmful so far as Classes I and II were concerned.
In view of the requirement of efficiency in the higher echelons of Service it is obvious that the classification made in the impugned order is reasonable and the argument of Mr. Chatterjee on this point must also be rejected as untenable.
For the reasons expressed we hold that the petitioner has made out no case for the grant of a writ under article 32 of the Constitution.
The application accordingly fails but, in the circumstances of the case, we do not propose to make any order as to costs.
R.K.P.S. Appeal dismissed.
[/INST]By an office memorandum of the Central Government issued on the 4th January 1957, in respect of posts filled by promotion through competitive examinations limited to departmental candidates, reservations at 12 1/2% and 5 1/2% of vacancies were provided for Scheduled Castes and Scheduled Tribes respectively.
By an earlier office memorandum of the 7th May 1955, in regard to promotions on the basis of seniority subject to fitness and those by selection, no reservations were provided but certain concessions were allowed to members of the backward classes.
After the decision of the Supreme Court in the case of the General Manager, Southern Railway vs Rangachari, ; , the matter was reviewed by the Central Government and it was advised that there was no consti tutional compulsion to make reservations for Scheduled Castes and Scheduled Tribes in posts filled by promotion and the question whether the reservation should be continued or withdrawn was entirely a matter of public policy.
Subsequent to the review, by a further office memorandum issued on the 8th November 1963 the Government notified its decision inter alia, that there would be no reservation for Scheduled Castes and Scheduled Tribes in appointments made by promotions to Class I and II services as these required a higher degree of efficiency and responsibility; but that such reservations would continue in certain grades and services in Class III and Class IV.
The petitioner was a class III employee of the Railway Board Secretariat Service and claimed promotion to the post of a Section Officer in Class II on the basis of the provision for reservations made in the Government 's Memorandum of January 4, 1957.
By a writ petition under article 32 of the Constitution he challenged the latest office memorandum of November 8, 1963 and prayed for a restoration with retrospective effect of the office memoranda issued on May 7, 1955 and January 4, 1957.
It was contended on his behalf, inter alia (i) that the impugned order violated the guarantee given to the backward classes under article 16(4) of the Constitution; article 16(4) was not an exception engrafted on article 16 but was in itself a fundamental right granted to the Scheduled Castes and Scheduled Tribes.
(ii) that the order was discriminatory,, because (a) it made a discrimination by making Provision for reservation in certain types of Class III and Class IV services only and not in Class II and I Services, (b) reservation was kept within Class III and Class IV for appointments for which there was direct recruitment and for promotions made by (1) selection, or (2) on the 722 result of a competitive examination limited to departmental candidates, but no reservation was provided for in respect of appointments made by promotion on the basis of seniority cum fitness; and (c) there was discrimination between the employees belonging to Scheduled Castes and Scheduled Tribes in the Railway Service and similar employees in the Central Secretariat Service on the ground that a competitive departmental examination for promotion to the grade of Section Officers was not held by the Railway Board for the years 1955 63 but such an examination was held for the Central Secretariat Service and 74 employees belonging to the Scheduled Castes and Scheduled Tribes secured the benefit of the provisions for reservation.
Held: (i) 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.
Article 16(4) is an enabling provision and confers a discretionary power on the State to make a reservation of appointments in favour of a backward class of citizens which, in its opinion, is not adequately represented in the Services of the State [734 B D].
General Manager, Southern Railway vs Rangachari, ; , referred.
(ii) The impugned order was not discriminatory.
(a) In view of the requirement of efficiency in the higher echelons of service it is obvious that the classification made in the impugned order between Classes I and II where no reservation was made and Classes III and IV where reservation was provided for, was reasonable.
[735 B, C].
(b) It is well established that there can be a reasonable classification of employees for the purpose of appointment by promotion and the classification as between direct recruits and promotees is reasonable [734 H 735 A].
Mervyn Coutindo vs Collector of Customs, Bombay, ; and section G. Jaisinghani vs Union of India, ; referred to.
(c) The petitioner being an employee of the Railway Board was governed by the rules applicable to the officers in the Service to Which he belonged.
The employees of the Central Secretariat Service belonged to a different class and it could not be said that there was any discrimination against the petitioner in violation of article 14.
[734 F G].
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<s>[INST] Summarize the judgementivil Appeal No. 652 of 1982.
From the Judgment and Order dated 22.8.1980 of the Patna High Court in Second Appeal No. 125 of 1977 (R).
Ashok K. Sen and D.P. Mukherjee for the Appellants.
N.H. Hingorani, Ms. Kapila Hingorani and R.P. Wadhwani for the Respondents.
The Judgment of the Court was delivered by THOMMEN, J.
This civil appeal by special leave is brought by the defendants against the judgment of the Patna High Court, Ranchi Bench, in Second Appeal No. 125 of 1977 dismissing in limine their appeal against the judgment of the learned District Judge in Title Appeal No. 2/5 of 1977 whereby the decree for eviction granted by the learned Munsiff in Title Suit No. 3 of 1975 was in part affirmed.
The plaintiffs (respondents) instituted the suit against the defendants (appellants) for eviction under Section 11(1)(d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 on the ground that the defendants were in arrears of rent for the months of February 1974 and May 1974 to August 1974.
The defendants contested the suit on various grounds.
Their main defence was that they were not in ar rears of rent as alleged by the plaintiffs.
Decreeing the suit, the learned Munsiff found that rent for the months of February 1974 and May 1974 to August 1974 had not been paid by the defendants.
This decree was affirmed by the learned District Judge in part, that is, in respect of the alleged arrears for the months of May 154 and June 1974, and not for any other period.
The finding of the First Appellate Court was affirmed by the High Court by dismissing the defendants ' appeal in limine.
The question which arises for consideration is whether the courts below were justified in coming to the conclusion, which they did, and whether the impugned judgment of the High Court is liable to be interfered with in the present appeal brought by special leave under Article 136 of the Constitution.
Whether or not rent for the two months in question had been duly paid by the defendants is a question of fact, and with a finding of such fact, this Court does not ordinarily interfere in proceedings under Article 136 of the Constitu tion, particularly when all the courts below reached the same conclusion.
But where the finding of fact is based on no evidence or opposed to the totality of evidence and contrary to the rational conclusion to which the state of evidence must reasonably lead, then this Court will in the exercise of its discretion intervene to prevent miscarriage of justice.
The suit was instituted by the widow of Rameswarlal Sultania.
The plaint was verified by Rameswarlal Sultania 's nephew on behalf of the plaintiffs, and he deposed as PW 4.
Neither the first plaintiff, the widow nor the other two plaintiffs, her children testified in support of the plaint allegations.
The nephew, PW 4 frankly admitted in the box that he had no personal knowledge of the facts alleged in the plaint.
He did not know if the defendants were in arrears of rent or whether his aunt, the first plaintiffs or anybody else had demanded rent from the defendants.
None of the witnesses on the side of the plaintiffs had any personal knowledge of the facts alleged by the plaintiffs in regard to the arrears of rent.
PW 4 is, amongst the plaintiff 's witnesses, the only person who speaks to this fact, but admittedly speaks without any claim of personal knowledge.
In the circumstances, there is no reliable oral evidence on the side of the plaintiffs to support the plaint allegation regarding the arrears of rent.
Nor is there any documentary evidence in support of their case.
On the other hand, the defendants categorically stated that they had paid the rent for the two months in question to the first plaintiff.
At that time her husband was alive, but he was in no condition, on account of poor health, to give a receipt for the rents paid.
The defendants, in view of their personal relationship with him, did not insist upon a receipt.
155 DW 8 is one of the defendants.
He categorically stated that for the months of May and June 1974 he paid the rent in June 1974 by handing over the amount to the first plain tiff 's daughter when she went to his shop to collect the rent.
Since she was a minor he accompanied her to her house to make sure that the amount was received by her mother, the first plaintiff.
His evidence on the point is in the follow ing words: "It is incorrect to say that I have not paid the rent for May June 1974.
In June, the daughter of Rameshwar Babu had come to demand Rs.200 towards the rent for May June 1974 and I had given the (Illegible) at that time.
I had demanded the receipt,_ but he was unwell and as such did not give it". "Rameshwar Babu was not living in his senses in June, 74.
His brain was not in proper condition.
In June, 74 I gave Rs.200 to his wife (plaintiff), after taking the same to his house.
Even subsequently my brother had gone to pay the rent to the plaintiff, Gita Devi for two three times.
" This evidence is supported by DW 7.
He is the Accountant of the first defendant firm of which defendants Nos. 2 and 3 who are brothers are partners.
Referring to these partners, and a neighbour by name Nandi (DW 6), this is what he says: "In June 74, the defendants, Bibhuti and Prahalad Chandra Dutta had given Rs.200 two hundred rupees to the daughter of Rameshwar Babu.
Nandi Babu, Bibhuti Babu and I were (present) in the shop, at that time.
This money was paid towards the rent of the house".
Nandi (DW 6) also speaks on this point: "The defendants always used to pay the rent in my presence . .
In June, 1974, they had given Rs.200 as rent to the younger daughter of Ramesh Babu in my presence.
I told (them) that as she was a small girl, they should also accompany her.
Then Bibhuti Bhusan Dutta reached the girl.
" The evidence of these three defence witnesses is that the rent for the months of May and June.
1974 had been duly paid in June 1974 in 156 the sum of Rs.200 by the second defendant (DW 8) to the landlord, Rameswarlal Sultania by handing over the amount to his minor daughter who went to the defendants ' shop to collect the same and by accompanying her to her house to see to the safe delivery of the same to the first plaintiff, her mother who obviously received it on behalf of her husband, the landlord.
The evidence seems to be clear on the point and we see no contradiction in this.
The courts below did not appreciate that this much evidence was staring in the face, and there was total ab sence of evidence on the point on the side of the plantiffs to contradict the defence evidence.
The plaint allegation regarding arrears was not spoken to on the plaintiffs ' side by any person having personal knowledge.
The plaintiffs made no attempt to let in any reliable evidence on the point.
The evidence of PW 4 who admittedly had no personal knowledge on the point is no evidence at all.
On the other hand, the evidence of DW 8, supported by the evidence of his Account ant (DW 7) and his neighbour (DW 6) is categoric and clear.
The learned District Judge disbelieved this evidence on the assumption that DW 6 contradicted himself when he stated that the amount was paid to the daughter and also to her monther.
In his written statement he stated that the amount had been paid to the landlord, Rameswarlal Sultania.
In the light of what we have stated above, we see no contradiction in these statements.
The amount was, in our view, rightly stated to have been paid to Rameswarlal Sulta nia when it was handed over to the daughter to be paid over to her monther, viz., the first plaintiff who was reasonably understood to have received it for and on behalf of her husband.
If the statement is true, there is no contradiction in it and it is categoric and clear.
We see no reason to suspect that it is not true for there is no evidence on the side of the plantiffs to the contrary.
As stated earlier, there is no evidence at all on the side of the plaintiffs that rents were in arrears.
In the absence of any reason to disbelieve the clear and categoric testimony of the defence witnesses on the point, we see no reason to suspect that the rents remained in arrears.
In the circumstances, we are of the view that the courts came to the conclusion, as they did, without any evidence whatsoever to support it and contrary to the available evidence let in by the defence.
Their conclusion was, therefore, perverse, irrational and totally unjustified.
For this reason, we set aside the impugned decree and judgment of the courts below.
The appeal is allowed with costs.
P.S.S. Appeal allowed.
[/INST]The appellant defendants fell in arrears of rent for the months of February and May to August 1974 for the demised premises.
The respondent plaintiffs sought their eviction under section 11(1)(d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 on the grounds of default.
Decreeing the suit, the trial court found that rent for the said five months had not been paid.
The decree was affirmed by the appellate court in part, that is, in respect of May and June, 1974.
That finding was affirmed by the High Court.
Allowing the appeal by special leave, the Court, HELD: The Supreme Court does not ordinarily interfere in proceedings under Article 136 of the Constitution particu larly when all the courts below had reached the same conclu sion.
But where the finding of fact is based on no evidence or opposed to the totality of evidence and contrary to the rational conclusion to which the state of evidence must reasonably lead, then the Court will in the exercise of its discretion intervene to prevent miscarriage of justice.
[154C D] In the instant case, there was no reliable oral evidence on the side of the plaintiffs to support the allegation that rents were in arrears.
Nor was there any documentary evi dence in support of their case.
Neither the first plaintiff, the widow nor the other two plaintiffs, her children, testi fied in support of the allegation PW 4, who verified the plaint on behalf of the plaintiffs admittedly had no person al knowledge that the defendants were in arrears of rent or whether the first plaintiff or anybody else had demanded rent from the defendants.
[156F G] On the other hand, DW 8, one of the defendants, stated that for the months of May and June 1974 he had paid the rent in June 1974 by 153 handing over the amount to the first plaintiff 's daughter when she went to his shop tO collect the rent.
Since she was a minor he accompanied her to her house to make sure that the amount was received by her mother, the first plaintiff.
This evidence has been supported by DW 7.
He was the Ac countant of the first defendant firm.
DW 6 also spoke of the fact that in June 1974 the defendants had given Rs.200 as rent to the younger daughter of the plaintiff.
These state ments of defence witnesses were categoric and clear.
There was no contradiction in term for there was no evidence on the side of the plaintiffs to the contrary.
The conclusion arrived at by the courts below that rents remained in ar rears was, therefore, perverse and totally unjustified.
[155A B, E; 156D, F, G]
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<s>[INST] Summarize the judgementminal Appeal No. 152 of 1967.
Appeal by special leave from the judgment and order dated November 19, 1966 of the Judicial Commissioner Court, Goa, Daman and Diu in Criminal Reference No. 103, of 1966.
R.N. Sachthey, for the appellant.
The respondent did not appear.
The Judgment of the Court was delivered by Grover, J.
The sole point for decision in this appeal by special leave is whether a complaint which had been filed against the appellant and four other persons by the respondent for various alleged offences could be entertained without necessary sanction being obtained for the prosecution of the appellant, who at the material time, was the Deputy Superintendent of Police, under section 197 of the Criminal Procedure Code.
The original complaint is not before us as it has not been included in the appeal record but the allegations contained therein are given in the judgment of the learned Judicial Commissioner.
The complainant alleged that on March 5, 1966 at about 4 p.m. accused Nos. 2 to 5 who were hawkers by profession and some other persons attempted to trespass on his land in Margao town with the intention of putting up stalls there.
The complainant having been threatened by them, sent his brother to the police station.
The police came and asked the hawkers to keep their handcarts at the place where they were kept before.
Later on at about 5 30 p.m. the appellant came to the spot and spoke to the complainant in a very arrogant tone.
The appellant informed the complainant that he was Deputy Superintendent of Police and that he had in his possession documents which proved that the land belonged to one Alma Ram.
The appellant asked the complainant to produce his documents of.
title but the complainant replied that those documents had been produced by him in some litigation in the civil courts.
The appellant is then alleged to have threatened the complainant that he would lock him up in case there was any interference with what the hawkers Wanted to do.
The appellant also beckoned accused Nos. 2 5 and other hawkers to enter upon the land.
When the complainant protested he was warned by the appellant that if he talked he would be slapped.
The appellant also assaulted him.
Thereafter the possession of the land was taken over by the hawkers.
The magistrate to whom the complaint was presented examined the complainant under section 200, Criminal Procedure Code 1015 and issued summons to answer the charges under sections 149, 341, 342, 352, 500, 503 and 504 read with section 34 against the appellant and other accused persons requiring them to appear on April 19, 1966.
The appellant filed a petition for revision under section 435 of the Code before the learned Sessions 'Judge in which the main point taken was that the previous sanction under section 197, Cr.
P.C., to prosecute the appellant was required which had not been obtained.
The learned Sessions Judge made an order recommending that the magistrate be directed to require the complainant to obtain the requisite sanction before prosecuting the appellant.
This matter was heard by a bench consisting of the Judicial Commissioner and the Additional Judicial Commissioner.
The Judicial Commissioner was of the view that there was no material on the record to come to the conclusion that the acts complained of would be protected by the provisions of section 197(1) of the Code.
The learned Additional Judicial Commissioner took a contrary view and held that sanction was necessary.
The order of the court was that there being no third Judge to resolve the difference of opinion, the order of the learned magistrate issuing the summons be confirmed in terms of proviso to section 7(2) of the Goa, Daman and Diu (Judicial Commissioner 's Court) Regulation, 1963.
It may be mentioned that in the statement recorded under section 200 of the Criminal Procedure Code, by the magistrate, the complainant made more or less the same allegations as were made in the complaint.
According to the learned Additional Judicial Commissioner in the statement made in court it was not affirmed that the complainant had been wrongly retrained or confined nor was it mentioned that he was actually assaulted in the sense that physical force was used against him.
The worst that could be said, according to the Additional Judicial Commissioner, was that the appellant had warned the respondent that he would be arrested if he interfered with the entry of the hawkers on the disputed land and that the appellant.
also made some gestures with the hand indicating threat of assault.
In our opinion it is not necessary to go into the allegations in the original complaint.
It would suffice to read the statement made by the complainant before the magistrate which is reproduced below: "I confirm the matter in my complaint.
On 5th instant, at about 4.00 p.m. the accused Nos. 2 to 5 attempted to trespass upon my plot situated near the market of this city with a view of setting upon thereon their mobile shops.
I, therefore, sent my brother to the Police, who came to the spot and sent the vendors away.
At about 5.30 p.m. on the same day Mr. Sinari, in civil dress turned up at that place.
At that time, I was sitting in the verandah of the shop of one Kharan 1016 gute situated at the same place.
He called me near him.
Thereafter he asked me whether I knew him, to this I replied in the affirmative.
After this, he identified himself as Dy.
Superintendent of Police and threatened me that if I interfered with vendors he would arrest me.
Subsequently, he directed the vendors to enter my plot and warned me that he should slap me on my face.
In case I oppose to this.
He told me further that he was dealing with the case, when I brought to his notice that my documents were lying with the Municipality and with the Court.
The same accused made some gestures of threats of assault with hands.
I kept myself mum in view of this unusual attitude and the vendors ' took possession of my pro The learned Judicial Commissioner as also the Additional Judicial Commissioner have discussed the case law on the subject exhaustively and have also summarised the principles deducible from the various pronouncements.
It seems to us that there is no difficulty in finding the true rule which has been laid down by numerous decisions including those of the Privy Council, Federal Court and this Court.
It is only in the application of the settled rule that certain amount of difficulty may be experienced owing to the peculiar facts of a particular case.
The language of section 197, Cr. P. Code clearly is that no court can take cognizance of an offence alleged to have been committed by any person belonging to the categories mentioned in the section which would include the appellant when he is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty.
This Court observed in Ronald Wood Matham vs State of West Bengal(1) that the question whether sanction under section 197 was necessary for instituting proceedings on charges of conspiracy and of bribery stood concluded by the decisions of the Judicial Committee in H. H. B. Gill vs The King(2) and Phanindra Chandra Neogy vs The King(3) and must be answered in the negative.
so far as the appellant in that case was concerned.
After a full discussion of the case law the result was stated in Matajog Dubey vs
H.C. Bhari(4): thus: "There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his . . duty.
" 76 I.A. 10.
(4) ; , 934, 1017 At an earlier stage it had been observed that it did not matter if the acts exceeded were strictly necessary for the discharge the duty.
What had to be found out was whether the act and the official duty were so inter related that one could postulate reasonably that it was done by the accused in the performance of the official duty though possibly in excess of the needs and requirements of the situation.
In Amrik Singh vs State Pepsu(x), Venkatarama lyer J. speaking for the Court summed up the result of the various decisions on the subject and said that it was not every offence committed by a public servant which required sanction for prosecution under section 197(1) of the Code of Criminal Procedure nor even every act done by him while he was actually engaged in the performance of his official duties.
But if the act complained of was directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary and that would be so, irrespective of whether it was in fact, a proper discharge of his duties or not.
Reference may be made to Nagraj vs State of Mysore(2) in which the appellant, a Sub Inspector of Police, was committed to Sessions Court for trial on a complaint that he and another person had severely beaten one T and when he was forcibly taking him away and was requested by K to excuse T he wantonly fired on two persons.
Emphasis on the question of sanction has been laid on the rule that the jurisdiction of the court to proceed with the complaint emanates from the allegations made in the complaint and not from what is alleged by the accused or what is finally established in the case as a result of the evidence record We are unable to agree with the learned Additional judicial Commissioner that if the allegations of the complainant are taken to be correct it was established that the appellant held out threats to arrest the complainant or to give him a slap on his face in the discharge or purported discharge of his duties.
There are many matters on which there is complete absence of any material or information.
In the first place it is not clear in what capacity the appellant came to the spot.
According to the complainant he sent his brother to the police station because the hawkers were attempting to trespass on his land.
Normally it would be the officr in charge of the police station who would go to the spot to prevent any breach of peace or apprehended breach of peace.
Even if the appellant who was a superior officer could come to prevent any ugly situation arising between the complainant and the hawkers.
It is not established that the appellant came in the capacity of a police officer.
On the contrary the necessary implication in the statement of the complain [1955]:1 S.C.R.1302.
f2) 11964138.CR. 671.
1018 ant is that the appellant came in civil dress, wanted the hawkers to be put in possession of the disputed plot and actually directed them to enter the plot and warned the complainant that if he.
resisted he would be slapped in his face.
Until some more material is placed on the record it cannot be held that it was any part of the duty of the appellant to ensure that the hawkers were put_in possession of the disputed land.
It may be that the appellant was entitled to interfere and take proper steps if he apprehended any breach of peace but there is nothing whatsoever in the complainant 's statement which would show that any such situation existed which could justify interference by the appellant.
Ordinarily if a person is in possession of some property and other persons are threatening to dispossess him it is no part of the duty of a police officer to take sides and decide the dispute in favour of one party or the other or to force one party to give up possession to the other, even if he was satisfied that the party seeking to take possession was lawfully entitled to do so.
This the police officer could only do if there had been any direction by a competent court for rendering help in the matter of delivery of possession.
Whatever way the matter is looked at we are unable to hold on the basis of the allegations contained in the statement of the complainant that the acts alleged against the appellant were such as could be regarded to have been committed by him while acting or purporting to act in the discharge of his official duties.
It will be open to the appellant to establish during the course of further proceedings that the requisite sanction under section 197 must be obtained; but at this stage we concur in the view of the learned judicial Commissioner that no such sanction was necessary.
The appeal fails and it is dismissed.
G.C. Appeal.
dismissed.
[/INST]The appellant plaintiffs filed a suit in February 1956, for the eviction the respondent on the ground that the premises were required for their own use, that the defendant already owned a suitable house of his own, and that the respondent had defaulted in payment of rent, after the defendant had flied a written statement and issues had been framed a joint application was made by them that a compromise had been effected.
The trial court decreed the suit in the plaintiff 's favour in terms of the compromise which provided inter alia, for the ejectment of the defendant after 31st December 1958, and fixed the standard rent as agreed.
The defendant, however, did not vacate the premises in December 1958, and presented an application in February 1959 under section 47 C.P.C., challenging the validity of the decree alleging that it had been passed in contravention of the provision of Delhi and Ajmer Rent Control Act, 1952 and contending that the decree was, therefore, a nullity.
He 'failed before the Sub Judge and also in appeal before the Senior Sub Judge.
However, the High Court in revision held in his favour.
appeal to this Court, HELD: The High Court has rightly held that the decree was a nullity as the order passed on the basis of the compromise did not indicate that any of the statutory grounds mentioned in section 13 of the Act existed.
[1050 B] Bahadur Singh vs Muni Subrat Dass, , followed.
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<s>[INST] Summarize the judgementtition (Criminal) Nos.277 80 of 1989.
(Under Article 32 of the Constitution of India).
R.B. Mehrotra for the Petitioners.
U.N. Bachhawat, Uma Nath Singh and N.N. Johri for the Respondents.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
Two important questions arising for consideration in the above matter are: 1.Whether the petitioners 1 and 2 have been illegally detained from 21.5.1989 to 1.8.1989 without any order of remand?
2. Whether the petitioners 1 to 3 on being arrested were subjected to torture and treated in a degrading and inhuman manner by handcuffing and parading them through the public thorough fare during transit to the Court in utter disregard to 874 the judicial mandates declared in a number of decisions of this Court and whether they are entitled for compensation?
The salient and material facts as set out in the Writ Petitions are as follows: The petitioners are social workers and Members of Kisan Adivasi Sangathan ', Kerala.
The said 'Sangathan ' is actively working against all kinds of exploitation purported against the local farmers and tribal people in the district of Hoshangabad.
In villages of Morpani and Madikhoh of Hoshan gabad District there was only one school teacher employed in the Morpani school.
The teacher was not attending the school for the last one and half years.
Inspite of several com plaints lodged against the teacher, the authorities did not pay any attention in this regard.
Therefore on 27/28.7.1988, the petitioners 1 to 3 along with a large number of tribal women and children staged a peaceful 'dharna ' in front of the office of Block Education Officer, Kesala demanding appointment of two regular teachers in the schools located in tribal hamlets.
The Assistant District Inspector of Schools gave an assurance in writing stating that he would make enquiries and initiate action in this regard.
But to the petitioners ' dismay, the local police initiated criminal proceedings against the petitioners 1 to 3 and one old Adivasi widow aged about 65 years who was not paid her wages by the said teacher, for an offence punishable under Section 186 IPC on the allegations that the petitioners and the Adivasi woman have obstructed public servants in discharge of their public functions.
In connection with the said criminal proceeding, the petitioners were arrested, abused, beaten and taken to the Court of 1st Class Judicial Magis trate, Hoshangabad by handcuffing them.
It seems that the petitioners when questioned refused to tender apology or repent for their conduct but tried to justify their action of having staged the dharna for a legitimate cause.
The Magistrate convicted the petitioners 1 to 3 and sentenced them to undergo simple imprisonment for a period of one month while acquitting the woman.
It is stated that even after the pronouncement of the judgment, the police once again abused them, made obscene gestures, beat and took them to the penitentiary handcuffed.
The fourth petitioner was arrested in connection with the peaceful dharna on 25.11.1987 before the office of the Block Education Officer, Kesala and put behind the bars.
A warrant was said to have been issued against the second petitioner directing him to appear before the Magistrate on 8.5. 1989 in connection with some other false case.
According to the petitioner, they all were working for the welfare of the weaker sections and down trodden people in 875 a peaceful manner but they were inhumanly treated against all norms of decency by the police in utter disregard of the repeated and consistent mandates of this Court and in utter violation of their fundamental rights guaranteed under Articles 14, 19 and 21 of the Constitution of India.
There after, the petitioners filed Criminal Miscellaneous Petition Nos.282 1 24 of 1989 in the above writ petitions for im pleading the Superintendent, District Jail and the 1st class Magistrate, Hoshangabad as additional respondents and to treat the additional facts as part of the main writ petitions.
The additional facts are as follows: The petitioners 1 and 2, namely, Sunil Gupta and Raj Narain though have served their one month imprisonment from 22.4.1989 to 21.5.1989 they were not released from the jail but continued to be detained on the allegation that they were wanted in two more cases, namely, in Case No. 470 of 1988 registered under Section 341 read with Section 34 IPC pending in the .Court of 1st Class Magistrate, Hoshangabad and another in a case registered as Criminal Case No. 569/88 against the two petitioners and others under Section 353, 148 and 149, IPC.
The Court proceedings disclosed that the Magistrate issued bailable warrants as against the petition ers 1 and 2 and continued the same by issuing repeated orders of bailable warrants in a very mechanical and casual manner and without application of mind from 26.5.1988 to 17.2.1989.
Even after the two petitioners have been sent to jail in pursuance of their conviction for the offence under Section 186 IPC, a number of incorrect nothings were made in the records of the courts as if both the petitioners were pro duced from jail.
Even after the expiry of the sentence, the Magistrate had not cared to proceed with the case and to know as to why petitioners 1 and 2 were languishing in jail.
In connection with the second case, petitioner No. 3, Puru shottam Nayak was also remanded but later on released on bail on 26.4.1989.
The Counter affidavit is filed by one R.K. Shivhare, the then SHO (Police), Itarsi, Hoshangabad District on behalf of the respondents giving a detailed version about the incident leading to the registration of various cases and justifying the conduct of the police officials in handcuffing the petitioners.
Alongwith this affidavit, he has filed Annex ures I to VI.
He justifies the action of the police stating that the petitioners on pronouncement of their conviction, got agitated, turned violent and shouted slogans inside the Court which necessitated the escort police to handcuff the petitioners.
He cites Madhya Pradesh Police Regulation para No. 465(1) as per which if the escort in charge 876 feels the necessity of handcuffing persons, he is empowered to do so.
However, he denies allegations of torture, obscene gestures etc.
A copy of the police report dated nil and without dis closing the author of the same is filed stating that while first and second petitioners were taken to the prison on their conviction, they turned violent not only inside the Court but also outside the Court and they were taken to the orison with the help of other members of the police force.
The Deputy Superintendent of Police, Headquarters, Hoshanga bad has filed a separate counter affidavit denying the allegations made in the writ petition.
A rejoinder is filed by the first petitioner reiterating his earlier stand and annexing certain newspaper clippings and some other docu ments inclusive of the copy of the judgment of the IInd Additional Sessions Judge, Hoshangabad made in Criminal Appeal No. 59 of 1989 setting aside the conviction of the petitioners recorded by the Judicial Magistrate for the offences under Section 186 IPC, and acquitting the petition ers of the said offence.
Head Constable No. 66, who was incharge of the escort party has sworn to an affidavit stating that the petitioners 1 and 2 were taken to the jail on being handed over by the Court after their conviction and they took them to the prison by handcuffing them under a bona fide belief that the situation might become worse.
He also cites paragraph 465(1) of the M.P. Police Regulation in support of his action of putting the petitioners 1 to 3 under shackles.
One other supporting affidavit is also filed by a constable of the escort party.
It seems that a Sub Inspector of CID made an enquiry on a petition regarding the handcuffing of petitioners 1 and 2 and submitted his report to the Superintendent of Police.
The relevant portion of the report reads as follows: " . .And the Court called the police guard and as per Court 's direction the three accused were handcuffed and kept in the lock up, later on the Court again called all the three accused persons to the Court where Purushottam Nayak was released on bail . . . . .
It was found on enquiry that the appellants Sunil and Rajnarayan were sentenced to one month imprisonment each under Section 186 IPC in the Court of Shri Chand Soria and police guards under the order of the honourable court handcuffed the appellants in the court itself and lodged them in jail.
The appellants say that they should not have been handcuffed but the guards had no other instruction to the contrary in this regard.
" 877 From the writ petition, counter affidavits and rejoinder affidavit, we are able to gather certain facts, they being: 1.A case in Crime No. 80/87 under Sections 147, 341 was registered against the petitioners along with some others on 11.12.A case in Crime No. 86/87 under Section 353, 323, 332 read with Sec.34 IPC was registered against the petitioners on 25.11.87 by Kesala police.
A case in Crime No. 87/87 under Section 34 1 read with Sec.34 was registered against the petitioners on 25.11.1987 itself.
This case was tried in criminal case No. 470/88 which ended in conviction and the petitioners were released on probation on 11.7.
A case in Crime No. 52/88 under Section 186 and 447 was registered on 28.7.1987 by Kesala police which case was tried as case No. 58/88 on the file of the Judicial Magis trate 1st Class, Hoshangabad which ultimately ended in conviction.
This conviction has been set aside by the appellate Court.
It is stated that the petitioners 1 and 2 were avoiding warrants of arrest in Crime Nos. 86/87 and 87/87.
It seems that a number of cases were registered against the petition ers 1 and 2 and both of them did not avail bail and they were in prison.
In this connection, we would like to dispose of the Criminal Miscellaneous Petition Nos.2821 24 of 1989.
As we are not satisfied that the Superintendent of Jail and the Magistrate are necessary parties for disposal of these writ petitions, these petitions are dismissed.
According to Mr. R.B. Mehrotra, the learned counsel for the petitioners, the sentence of imprisonment for a period of one month imposed on petitioners 1 and 2 for the offence under Section 186 IPC expired on 21.5.1989 and, therefore, their subsequent detention till 1.8. 1989 was unauthorised and illegal.
A perusal of the materials placed on record, it is seen that the case in crime No. 87/87 was registered as criminal case No. 470/88 and it came to an end on 11.7.89 when the petitioners were released on probation.
The case in crime No. 86/87 was registered as criminal case No. 569/89.
There were 8 accused in that case inclusive of these two petitioners who were 878 arrayed as accused Nos. 3 and 4.
This case went on for several adjournments on the ground that one or other accused was either not produced before the Court or not appeared on the hearing date.
However, on 1.8.1989 the first petitioner was released on his personal bond as per the orders of this Court.
On 11.8.1989, the case was adjourned to 21.8. 1989 for further proceedings.
Though notes of the case diary, copies of which are filed before us, are not very clear as to the reasons of repeated issue of warrants yet we find that these petitioners were under remand in both the cases namely criminal case Nos.470/88 and 569/88.
Though the petitioners were released on probation in criminal case No. 470/88 yet on 11.7.1989 the petitioner No. 1, namely, Sunil Gupta was in jail in case No. 569/89 till he was released under the orders of this Court.
It is not the case of the petitioners that any complaint was made before this Court in the previous occasion when their release was sought for that they were in prison without orders of remand or that this Court made any observation about it.
Under these circum stances, we do not see any force in the contention that the petitioners were illegally detained till 1.8. 1989.
Accord ingly, the first question is negatived and answered against the petitioners.
Next, we shall examine whether petitioners 1 to 3 were subjected to all kinds of humilitation by being abused, beaten up and ultimately handcuffed.
At the threshold, it may be noted that the writ petition is filed by Mr. R.B. Mehrotra, Advocate for the petitioners whose registered clerk has filed an affidavit of verification.
The following averments are made in the writ petition: "That the petitioners were beaten, abused and they were taken handcuffed to the Court of Shri Chansoria, Judicial Magistrate 1st Class, Hosangabad" (vide paragraph 6).
"They had been handcuffed and were beaten by the police on number of earlier occasions for holding peaceful dharna and for making representations on behalf of the tribal people" (vide paragraph 10) "
That the authorities have caused injuries, physical pain, mental agony and insult to the petitioners" (vide paragraph 13) "That the petitioners have suffered grave mental agony, insult and physical pain at the hands of the police and the local authorities".
(vide paragraph 14) 879 The above allegations are stoutly refuted on behalf of the respondents.
However, the complaint of handcuffing is not denied and that action of the escort police is attempted to be justified mainly on the following grounds: 1.After pronouncement of the judgment in criminal case No. 248/88 arising out of crime No. 52/88 registered under sections 186 and 447 IPC, the petitioners 1 to 3 on their conviction got agitated, turned violent and shouted slogans outside and inside the Court and in such turbulent circum stances, the escort party felt that it was necessary to handcuff the petitioners.
Paragraph 465(1) of Part III dealing with escorting of arrested and convicted persons (including political persons) falling under Chapter VII of Madhya Pradesh Police Regula tions captioned 'Protection and Escort ' empowers the escort police to handcuff the arrested or convicted persons if the escort police feels the necessity.
It has been reported by the Jail Superintendent that in several cases the under trial prisoners have run away from police custody while being taken from jail to Court or vice versa.
Before scrutinising the material in regard to the com plaint of handcuffing, we shall dispose of the allegations of abuse, obscene gestures, beating and torture etc.
At the cost of repetition, it may be stated that all those allega tions except the handcuffing are denied.
Sunil Gupta, the first petitioner has filed an additional reply affidavit dated 8th July 1989 in which there is no allegation about the alleged torture, abuse, obscene gestures etc.
In his rejoinder affidavit filed in September 1989 by Sunil Gupta himself while referring to the incident relating to Criminal Case No. 569/88, he has stated.
"We are doing only peaceful picketing.
On this police and the Gundas of the ruling party came and we were beaten by the police and Gundas of ruling party and were forcibly removed from the Block Office.
" Barring that, there is no allegation of abuse and obscene gestures etc.
In view of the conspicuous omission in both the affidavits filed by Sunil Gupta, we see no force in the complaint that the police abused, tortured and made obscene gestures etc.
880 The only remaining complaint to be considered is in regard to the handcuffing.
We have already mentioned in the preceding part of the judgment the reasons given by the respondents in justification of the conduct of the escort party in putting menacles on the petitioners 1 and 2.
With regard to the reasons assigned by the police, Sunil Gupta in his additional affidavit has stated thus: "This act is incorrect, firstly neither myself nor Raj Narain did shout any slogan in the Court though I was hand cuffed in the Court itself but the handcuffing was not done with the consent of the Magistrate nor it was done under his direction.
Raj Narain was taken to jail on 21st April, 1989 and was brought in the Court on 22nd April 1989 under hand cuffs from the jail itself to Court lock up and then taken under handcuffs in the Court itself in the presence of the Magistrate.
" Coming to the Regulation relied upon by the police, we would like to reproduce the relevant instructions of the Madhya Pradesh Police Regulation hereunder for proper under standing the plea of justification.
'M.P. Police Regulation CHAPTER VII Protection and Escort Part III Escorting of the arrested and convicted per sons (including political persons) 465. When to use handcuffs Handcuffing will be resorted to only when it is necessary.
Its use will be regulated by following instructions.
Instructions regarding use of handcuffs (1) When a prisoner is to be taken from court to jail or jail to court in the custody; the Magistrate or the Jail Superintendent should give instructions in writing as to whether the prisoner will be handcuffed or not and the escort commander will follow the instructions but when 881 the instructions are for not to handcuff the prisoner and thereafter, due to some reasons if the escort commander feels that it is necessary to handcuff the prisoner, he should do so inspite of the instructions to the contrary.
(2) (1) . . . (3) The escort commander should ask and obtain orders in writing without fail, regarding handcuffing of prisoners, from the Magistrate or the Jail Superintendent before taking into custody the prisoner for escorting from the court or the jail.
Strict action should be taken against any disobe dience of this instruction.
" Undeniably, the escort party neither got instructions nor obtained any orders in writing from the Magistrate or the Jail Superintendent regarding handcuffing of petitioners 1 to 3 as found under the above instructions (1) and (2).
The escort commander has also not noted any reason for handcuffing the petitioners on 22.4.1989, on the other hand in the letter dated nil annexed to the counter of S.H.O., no mention of handcuffing is made at all.
Let us examine whether the plea of justification is supported by the materials placed before this Court.
Nand Lal Sharma (Head Constable No. 66), who presumably headed the escort party has not stated in his affidavit that he got instructions in writing, either from the Magistrate or from the Jail Superintendent to bind the petitioners 1 to 3 in fetters.
Nowhere, in his affidavit he swears that he handcuffed the petitioners 1 to 3 either under the orders or directions of the Magistrate.
Even the counter affidavit filed by Shivhare, S.H.O. of Itarsi Police there is no averment that the Magistrate directed the escort party to handcuff the petitioners 1 and 2.
For the first time, only in the report dated 10.7.1989, the relevant portion of which is extracted above, it is submitted by the Sub Inspector, CID to the Superintendent of Police, Hosangabad that the handcuffing was under the direction of the Court.
However, in the copies of the daily diary of the 'date 22.4.1989, it 882 is mentioned that the Head Constable Nand Lal Sharma and the constables of his escort party have been ordered to produce the accused to the Court from the jail after handcuffing them and they were further ordered to take the chains be sides handcuffs from the armoury.
These entries are purport ed to have been made one at 10.05 A.M. and another at 5.15 P.M.
There is a specific entry in the said daily diary that the escort party had produced the three accused before the Court after handcuffing them.
It seems that certain state ments were also recorded from petitioners 1 and 2 on 4.7. 1989 and 5.7.1989.
One, Jasbir has filed reply affidavit submitting that the petitioners 1 and 2 were handcuffed 'within the court room without there being any occasion for the same ' and 'the Magistrate never endorsed or directed their handcuffing '.
The petitioners have produced two photo graphs showing that the left hand of one person and the fight hand of another person are bound in fetters with a leading chain.
In one of the photographs, yet another person standing behind these two persons is also found handcuffed with a leading chain.
A number of persons inclusive some police officials also found standing nearby indicating that these petitioners 1 to 3 have been publically handcuffed.
This handcuffing of petitioners 1 to 3 with the leading chains might not relate to the admitted handcuffing of these petitioners on 22.4.1989 while they were being taken from the prison to the Court and from the Court to the prison because the close examination of these photographs reveal that the handcuffing of these three persons should have been on a thorough fare.
Though neither the enquiry report dated 10.7.89 of the Sub Inspector of CID nor the counter affida vits filed by the SHO, Head Constable and Constables disclose either about the handcuffing of these three petition ers earlier to 22.4.1989 or about the handcuffing of these petitioners while being taken to Court from the jail.
We are very much distressed the way in which the respondents have come forward to explain their conduct of handcuffing of these three petitioners while being taken from the Court to the jail but make no whisper about the handcuffing from jail to Court.
This Court on several occasions has made weighty pro nouncements decrying and severely condemning the conduct of the escort police in handcuffing the prisoners without any justification.
Inspite of it, it is very unfortunate that the Courts have to repeat and re repeat to disapproval of unjustifiable handcuffing.
As is pointed out by Krishna lyer, J. speaking for himself and Chinnappa Reddy, J. in Prem Shankar Shukla vs Delhi Administration.
; , this kind of complaint cannot be dismissed as a daily sight to be pitied and buried but to be examined from funda mental view point.
In the same 883 judgment, the following observation is made with regard to handcuffing: "Those who are inured to handcuffs and bar fetters on others may ignore this grievance, but the guarantee of human digni ty, which forms part of our constitutional culture, and the positive provisions of Articles 14, 19 and 21 spring into action when we realise that to manacle man is more than to mortify him; it is to dehumanize him and, therefore, to violate his very person hood, too often using the mask of 'dangerousness ' and security." . . "Handcuffing is prima facie inhuman and, therefore, unrea sonable, is over harsh and at the first flush, arbitrary.
Absent fair procedure and objective monitoring, to inflict 'irons ' is to resort to zoological strategies repugnant to Article 21.
Thus, we must critically examine the justifica tion offered by the State for this mode of restraint.
Sure ly, the competing claims of securing the prisoner from fleeing and protecting his personality from barbarity have to be harmonised.
To prevent the escape of an under trial is in public interest, reasonable, just and cannot, by itself, be castigated.
But to bind a man hand and foot, fetter his limbs with hoops of steel, shuffle him along in the streets and stand him for hours in the courts is to torture him, defile his dignity, vulgarise society and foul the soul of our constitutional culture.
Where then do we draw the humane line and how far do the rules err in print and praxis?"
Chinnappa Reddy, J. in Bhim Singh, MLA vs State of J & K and Others, has expressed his view that police officers should have greatest regard for personal liberty of citizens in the following words: "Police officers who are the custodians of law and order should have the greatest respect for the personal liberty of citizens and should not flout the laws by stooping to such bizarre acts of lawlessness.
Custodians of law and order should not become depredators of civil liberties.
Their duty is to protect and not to abduct.
" See also Maneka Gandhi vs Union of India and Another,[1978]1 884 SCC 248; Sunil Batra vs Delhi Administration and Others, ; and Sunil Batra (II) vs Delhi Administra tion; , Coming to the case on hand, we are satisfied that the petitioners are educated persons and selflessly devoting their service to the public cause.
They are not the persons who have got tendency to escape from the jail custody.
In fact, the petitioners 1 and 2 even refused to come out on bail, but chose to continue in prison for a public cause.
The offence for which they were tried and convicted under Section 186 of Indian Penal Code is only a bailable offence.
Even assuming that they objected public servants in dis charge of their public functions during the 'dharna ' or raised any slogan inside or outside the Court, that would not be sufficient cause to handcuff them.
Further, there was no reason for handcuffing them while taking them to Court from jail on 22.4.89.
One should not lose sight of the fact that when a person is remanded by a judicial order by a competent Court, that person comes within the judicial custody of the Court.
Therefore, the taking of a person from a prison to the Court or back from Court to the prison by the escort party is only under the judicial orders of the Court.
Therefore, even if extreme circumstances necessitate the escort party to bind the prisoners in fetters, the escort party should record the reasons for doing so in writing and intimate the Court so that the Court considering the circumstances either approve or disapprove the action of the escort party and issue necessary directions.
It is most painful to note that the petitioners 1 and 2 who staged a 'dharna ' for public cause and voluntarily submitted them selves for arrest and who had no tendency to escape had been subjected to humiliation by being handcuffed which act of the escort party is against all norms of decency and which is in utter violation of the principle underlying Article 21 of the Constitution of India.
So we strongly condemn this kind of conduct of the escort party arbitrarily and unrea sonably humiliating the citizens of the country with obvious motive of pleasing 'some one '.
For the discussion made above, we have no compunction in arriving at a conclusion that in the present case, the escort party without any justification had handcuffed the petitioners on 22.4.1989 on both occasions i.e. when taking the petitioners 1 and 2 from the prison to he Court and then from the Court to the prison.
Hence, we direct the Govern ment of Madhya Pradesh to take appropriate action against the erring escort party for having unjustly and unreasonably handcuffing he petitioners 1 and 2 on 22.4.89 in accordance with law.
885 As has been pointed out supra, the copies of the photo graphs produced before this Court clearly reveal that three persons evidently the petitioners 1 to 3 have been hand cuffed with leading chains.
We are not able to arrive at a correct conclusion as to when, where and under what circum stance this had happened.
Therefore, we further direct the Government of Madhya Pradesh to initiate an enquiry in this matter and to take appropriate action against the erring officials.
Lastly, with regard to the prayer of claim for suitable and adequate compensation, we observe that it is open to the petitioners to take appropriate action against the erring officials in accordance with law, if they are so advised, and in that case, the Court in which the claim is made can examine the claim not being influenced by any observation made in this judgment.
In the result, the writ petitions are disposed of sub ject to the observations made above.
R.S.S. Petitions disposed of.
[/INST]The petitioner filed a writ petition in this Court under Article 32 of the Constitution of India by way of public interest litigation seeking directions for (i) inquiry against police officials under whose jurisdiction the malady of forced prostitution, Devdasi system and Jogin traditions were flourishing and (ii) for rehabilitiation of the victims of this malady.
Disposing the writ petition, this Court.
HELD: 1.
The malady of prostitution is not only a social but also a socio economic problem and, therefore, the meas ures to be taken in that regard should be more preventive rather than punitive.
This cannot be 862 eradicated either by banishing, branding, scourging or inflicting severe punishment on the helpless and hapless victims most of whom are unwilling participants, and invol untary victims of compelled circumstances and who, finding no way to escape, are weeping or wailing throughout.
This devastating malady can be suppressed and eradicated only if the law enforcing authorities in that regard take very severe and speedy action against all the erring persons such as pimps, brokers and brothel keepers.
[867D; E G] 2.
In spite of the stringent and rehabilitative provi sions of law contained in Constitution of India, 1950, the Immoral Traffic (Prevention) Act, 1956, Indian Penal Code, 1860 and the Juvenile Justice Act, 1986, it cannot be said that the desired result has been achieved.
It cannot be gainsaid that a remarkable degree of ignorance or callous ness or culpable indifference is manifested in uprooting this cancerous growth despite the fact that the day has arrived imperiously demanding an objective multi dimensional study and a searching investigation into the matter relating to the causes and effects of this evil and requiring the most rational measures to weed out the vices of illicit trafficking.
[867C D] 3.
The Courts also in such cases have to always take a serious view of this matter and inflict consign punishment on proof of such offences.
However, it is neither practica ble and possible nor desirable to make a roving enquiry through the C.B.I. throughout the length and breadth of the country.
and no useful purpose will be served by issuing any such direction.
[867G; 867E] 4.
Apart from legal action, both the Central and the State Governments have got an obligation to safeguard the interest and welfare of the children and girls of this country.
[867H] Lakshmi Kant Pandey vs Union of India, and Guarav Jain vs Union of India & Ors.
, ; , referred to.
All the State Governments and the Governments of Union Territories should direct their concerned law enforc ing authorities to take appropriate and speedy action under the existing laws in eradicating child prostitution without giving room for any complaint of remissness or culpable indifference.
They should also set up separate Advisory Committees for making suggestions for eradication of prosti tution, implementation of the social welfare programmes for the care, protection, treatment, development and rehabilita tion of the victims, and for 863 amendments of the existing law, or for enactment of any new law for prevention of sexual exploitation of the children.
These Governments should also devise a machinery for ensur ing proper implementation of the suggestions of their re spective committees.
[868D H; 869A E]
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<s>[INST] Summarize the judgementil Appeals Nos. 751 of 1957 and 10 of 1958.
Appeal from the judgment and order dated December 7, 1956, of the Calcutta High Court in Matters Nos. 29 and 58 of 1956.
M. C. Setalvad, Attorney General of India, C. K. Daphtary, Solicitor General of India, Sukumar Mitra, Sankar Ghosh and B. N. Ghosh, for the appellants in C. A. No 751 of 57.
M. C. Setalvad, Attorney General of India, Sankar Ghosh and D. N. Mukherjee, for the appellants in C. A. No. 10 of 1958.
section M. Bose, Advocate Generalfor the State of West 905 Bengal, B. Sen and P. K. Bose, for the respondents (in both the appeals). 1960.
September 27.
The Judgment of the Court was delivered by HIDAYATULLAH J.
These two appeals on a certificate under article 132(1) of the Constitution have been filed respectively by the Burmah Shell Oil Storage land Distributing Co., of India, Ltd., and the Standard Vacuum Oil Company (in this judgment referred to as the appellant Companies) against a common judgment of the High Court of Calcutta dated December 7, 1956.
The High Court was moved for writs of mandamus, prohibition and certiorari under article 226, but the petition was dismissed by D. N. Sinha, J. The matter arises out of assessment to sales tax on sale of motor spirit for aviation purposes (shortly, aviation spirit) supplied by the appellant Companies to aircraft bound for countries abroad, under the Bengal Motor Spirit Sales Taxation Act, 1941, as amended by section 2(a)(i) of the Bengal Motor Spirit Sales Taxation (Second Amendment) Act, 1954.
The Commercial Tax Officer, the Commissioner of Commercial Taxes and the State of West Bengal have been joined as respondents in this Court, as they had previously been joined in the High Court.
The appellant Companies deal in Petroleum and Petroleum products, and carry on business at Calcutta.
They maintain supply depots at Dum Dum Airport from which aviation spirit is sold and delivered to aircraft proceeding abroad and belonging to several Companies.
It appears that such sales were treated by the sales tax authorities in the State of Bombay as not falling within the taxing Acts in force in the Bombay State by reason of the provisions of article 286 of the Constitution.
The sales tax authorities in West Bengal, however, took a different view of the matter, and after sundry procedure resulting in assessment of tax, presented a demand notice for the tax assessed which was paid under protest by the appellant Companies.
The appellant Companies filed petitions under article 226 of the Constitution in the High 906 Court of Calcutta questioning the legality of the imposition but without success.
They have now filed these appeals after obtaining a certificate, as already stated.
The contentions in this Court, as they were also before the High Court, 'are that such sales are made in the course of export of such aviation spirit out of the territory of India, that they take place outside the State of West Bengal, that inasmuch as aviation spirit is delivered for consumption outside West Bengal, the sales cannot fall within the Explanation to sub cl.
(a) of the first clause of article 286, and that unless they can be said to become "Explanation Sales", the power to tax does not exist.
It is argued in support of the last contention that there is not even an averment in the reply of the respondents before the High Court that aviation spirit is delivered for consumption within West Bengal.
The case in the High Court was restricted to consideration of supplies to aircraft which either proceed to foreign countries directly from Dum Dum Airport, or do so ultimately, though landing en route at some place or places in the Indian territory.
The case has been similarly confined in this Court also, and we are not required to express any opinion about sales of aviation spirit to aircraft flying from one place in West Bengal to another place also within that State, or even to some place in another State in the territory of India.
The facts are fortunately not ' in dispute.
Both parties admitted the procedure for the supply of aviation spirit to aircraft.
Briefly described, it is as follows: Before the arrival of such an aircraft, a representative of the appellant Companies applies to the Airport Customs Officer to depute an Officer to supervise the refuelling of the aircraft.
After the aircraft lands, the captain or the Ground Engineer gives instruction about the quantity of aviation spirit required, and on permission being given by the Customs authorities, the stated quantity is delivered in the presence of the Customs Officer deputed.
Details of the delivery are entered in a delivery receipt, which 907 is signed by the representative of the appellant Companies and the Customs Officer deputed.
Duty drawback shipping bills are also drawn up to show the ' quantity of aviation spirit and are countersigned by them and also by a representative of the aircraft.
Later, claims for refund of customs duty are made, and refund is granted.
In the petition filed in the High Court, it was averred that such aviation spirit is required for consumption during flight and/or outside the territory of India, and is thus delivered for purposes of consumption outside West Bengal and in some cases outside the territorial limits of India as well.
It was also stated that it was sold in the course of export outside the territory of India, and drawback of customs duty was obtained.
In the reply of the respondents, it was stated that the refund of customs duty was an irrele vant fact for the purpose of assessment.
It was further stated in the affidavit of the Commercial Tax Officer as follows : " I further state that a foreign bound aircraft on leaving Dum Dum Airport consumes a portion of the aviation spirit taken in by it at the Airport within the territory of West Bengal before it moves out of the said territory or the territory of India.
I do not admit that the entire quantity is used outside the territorial limits of India as alleged.
I deny that the sale of such aviation spirit takes place outside the State of West Bengal and state that the sale takes place within the State of West Bengal and the purchaser pays its price within the State of West Bengal.
The sale of such aviation spirit is completed by delivery at the Dum Dum Airport in West Bengal.
" We have mentioned this fact, because it was argued that the respondents had not averred clearly that aviation spirit was sold for consumption within West Bengal even though the appellant Companies had denied it.
The respondents pointed out that at least some of the aviation spirit must be consumed in the State, and that this was so stated in the affidavit filed in reply to the petition and quoted by us.
This is 908 hardly a case for a fight on pleadings, especially as the entire procedure of the supply of aviation spirit and the use to which it is put are beyond controversy.
The question that we have to consider is one of principle, and the answer depends upon broad facts and not on technicalities.
Either the whole of the sale is within the taxing power of the State or it is not, and the fact that aviation spirit is consumed in taking off or in flying over the territory of West Bengal before it leaves that territory would make no difference either way to the principles applicable.
Though parties entered into a debate on this part of the case, we do not propose to consider it, because, in our opinion, the question must be considered in substance and not in abstractions.
The liability to sales tax, if any, is attracted when aviation spirit is sold, and immunity can only be claimed, if, as stated in article 286(1)(a) and the Explanation, the sale can be said to take place outside the State or can be regarded under article 286(1)(b) as having taken place " in the course of. export of the goods out of, the territory of India".
Before we take up these two questions, we desire to refer to some provisions of certain Acts, which bear upon the matter.
The Indian , is an Act for the control of the manufacture, possession, use, operation, sale, import and export of aircraft.
Section 16 of this Act provides that the Central Government may, by notification in the Official Gazette, declare that any or all of the provisions of the Sea Customs Act shall, with such modifications and adaptations as may be specified in the notification, apply to the import and export of goods by air Sections 2(3) and (4) define " import" and " export ' respectively as " bringing into India " and " taking out of India ".
A notification issued under the Indian , the rules framed thereunder and the Indian Aircraft Rules, 1920, appointed the Civil Aerodrome, Dum Dum, a Customs Aerodrome, and to that Customs Aerodrome, the provisions of the Sea Customs Act mutatis mutandis were made applicable by r. 63 (Part IX) of the Indian Aircraft Rules, 1920.
As 909 a result, Dum Dum Airport became a Customs Aerodrome, and any aircraft coming into India from foreign countries or leaving for any such country has to comply with ordinary Customs formalities.
Section 42 of the Sea Customs Act, which allows drawback on re export and is applicable mutatis mutandis, provides: " When any goods, capable of being easily identified, which have been imported by sea into any customs port from any foreign port, and upon which duties of customs have been paid on importation, are re exported by sea from such customs port to any foreign port, or as provisions or stores for use on board a ship proceeding to a foreign port seven eighths. of such duties shall, except as otherwise hereinafter provided, be repaid as drawback: ".
(Provisos omitted).
Under section 51, no drawback is allowed unless the claim to receive such drawback is made and established at the time of re export, and under section 52, the person claiming drawback has to make and subscribe to a declaration.
The procedure which is described in an earlier portion of this judgment bears upon these matters.
Coming now to the taxing Acts with which we are concerned, it may be pointed out that the Bengal Motor Spirit Sales Taxation Act, 1941, originally did not contemplate levy of a tax on the sale of aviation spirit.
Motor spirit was defined to mean, " any liquid or admixture of liquids which is ordinarily used directly or indirectly as fuel for any form of motor vehicle or stationary internal combustion engine, and which has a flashing point below 76 degrees Fahrenheit ".
Sub section (4) of section 3, which is the charging section, provided that no tax shall be levied on the sale of any motor spirit for the purpose of aviation.
The Act was amended by the Second Amendment Act, 1954, and sub section
(4) of section 3 was omitted, and the proviso to the first sub section was re enacted, adding one more clause to the following effect 910 the tax on all retail sales of motor spirit for the purpose of aviation, which are effected on or after the date of the commencement of the Bengal Motor Spirit Sales Taxation (Second Amendment) Act, 1954, shall be charged at the rate of three annas per gallon ".
By the Bengal Motor Spirit Sales Taxation (Amendment) Act, 1955, the original Act was further amended.
To the definition of" motor spirit ' quoted by us earlier, an Explanation was retrospectively added, which reads as follows: " Explanation For the avoidance of doubt, it is hereby declared that in this Act, the expression ' vehicle ' means any means of carriage, conveyance or transport, by land, air or water ".
The original Act was again amended by the Bengal Motor Spirit Sales Taxation (Amendment) Act, 1957.
This time, among other amendments involving rates of tax, the words " and which has a flashing point below 76 degrees Fahrenheit " were omitted from the definition of 'motor spirit '.
The result of all these amendments was to make retail sales of aviation spirit liable to sales tax, and 'retail sale ' was defined, at all material times, as a sale " by a retail dealer for the purpose of consumption by the purchaser ".
After the coming into force of the Constitution, section 22, in terms of article 286, was added to the original Act by paragraph 3 of, and the Eleventh Schedule to, the Adaptation of Laws Order, 1950.
It read: " 22(1).
Nothing in this Act shall be construed to impose or authorise the imposition of a tax on the sale or purchase of motor spirit: (a) where the sale or purchase takes place outside the State of West Bengal; (b) where the sale or purchase takes place in the course of the import of such motor spirit into, or export of such motor spirit out of the territory of India; or (c) (omitted).
(2) The Explanation to clause (1) of article 286 of the Constitution shall apply for the interpretation of clause (a) of sub section (1) 911 Clauses (a) and (b) of the first sub section do no more than re enact the prohibition contained in article 286 of the Constitution with modifications to Suit motor spirit, and the Explanation to sub cl.
(a) of cl.
(1) of the said Article in the Constitution has been applied without an attempt to modify or adopt it.
The Explanation to sub cl.
(a) of the first clause of article 286, the meaning of which was much in dispute in this case, may conveniently be quoted here.
It reads: " Explanation For the purposes of sub clause (a), a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that State, notwithstanding the fact that under the general laws relating to sale of goods the property in the goods has by reason of such sale or purchase passed in another State ".
The High Court of Calcutta in its judgment dealt with the points urged, and rejected them.
The reasons of the High Court briefly were as follows: The learned Judge declined to draw any inference from the fact that customs duties were refunded as drawbacks on aviation spirit delivered to the aircraft.
He held that he was not required to decide whether the appellant Companies were entitled to claim and receive drawbacks of customs duty.
He then gave a finding that the sale was physically within the State, because both the buyer and the purchaser were, at the time of sale, within the State of West Bengal even though delivery of aviation spirit was beyond the customs barrier.
He then considered the legal position in the light of article 286 from three points of view.
He first held that it was not an inter State transaction, because both the parties were in the State of West Bengal, and aviation spirit was not delivered outside the State.
Thus, he held that el.
(2) of article 286 did not apply.
In this connection, he relied upon the decision of this Court in the Bengal Immunity Co., Ltd. vs State of Bihar and others (1).
He next considered (1) 912 the matter under the first sub clause, and held that unless the fiction created by the Explanation applied, the sale must be treated as within the State under the law relating to sale of goods.
In his opinion, the sale being completed within the State of West Bengal both as regards contract and delivery, the fiction could not be held applicable, because no " outside " State was involved, even though the aircraft might have to consume some aviation spirit while flying over the " outside " State.
He, therefore, held that the Explanation and article 286(1)(a) which it seeks to explain, were both not applicable.
He then considered the matter from the point of view of article 286(1)(b).
He explained on the authority of the decision of this Court in State Of Travancore Cochin and others vs Shanmugha Vilas Cashewnut Factory and others (2) that the expression " in the course of export out of the territory of India" referred to sales which, by themselves, occasioned the export of goods out of the territory of India and not to sales for the purpose of export, even though the goods ultimately passed the customs barrier.
He pointed out that there was no foreign purchaser to whom the aviation spirit could be said to have been exported, and that aviation spirit, in fact, was consumed en route and never taken to any foreign territory.
He also pointed out that no bills of lading or shipping documents were drawn up, and therefore there was neither an export nor a sale in the course of export out of the territory of India.
The appellant Companies claim that these sales come within the exemption granted the sub cls.
(a) and (b) of the first clause of article 286.
To claim the exemption granted by the first sub clause, they rely upon certain decisions of this Court, and contend that unless the sale can be said to fall within the Explanation, it must be treated as a sale outside the State of West Bengal, and is thus exempt.
With regard to the second sub clause, they contend that there was an export out of the territory of India inasmuch as aviation spirit was taken abroad and any sale by which it is taken abroad is also exempt These (2) ; 913 arguments, as has been shown above, were urged before the High Court, but were not accepted.
These two arguments need to be considered separately, as they have little in common.
Article 286 places restrictions upon the power of the States to tax sales and purchase of goods, and cuts down the amplitude of Entry No. 54 in the Second List of the Seventh Schedule.
Other restrictions are also to be found in Part XIII of the Constitution.
With those we are not concerned in these appeals.
We are also not concerned with the subsequent amendment of article 286, nor with the ban imposed by the second clause of the Article on taxes on sales in the course of inter State trade and commerce.
We are concerned with the first clause only, as it stood before the amendment.
That clause is divided into two sub clauses.
The first sub clause prohibits the imposition of tax on the sale or purchase of goods where the sale or purchase takes place outside the State.
AD Explanation is added to this sub clause, which has been quoted by us earlier.
This Explanation has led to a long controversy in this Court during which somewhat conflicting views have been expressed about its meaning.
This conflict has further been accentuated when the interplay between the two clauses has been considered.
The view now accepted is that the bans imposed by the two clauses are independent and separate and each must separately be got over.
In view of this, we are not required to travel beyond the first clause in this case.
We have heard widely divergent arguments in these appeals.
The learned Attorney General who appeared on behalf of the appellant Companies read to us copious extracts from the earlier decisions of this Court, and contended that unless the sales could be said to fall within the Explanation so as to become 'Explanation sales ', they must be regarded as having taken place outside the State of West Bengal and for that reason, not taxable.
According to him, they could only become 'Explanation sales ' if aviation spirit was delivered for the purpose of consumption within the State of West Bengal.
The learned Advocate General of West Bengal, on the other band, 914 contended that the Explanation did not apply to the facts here, and that the observations in the rulings were not relevant.
The first sub clause in its opening portion says that no law of a State shall impose or authorise the imposition of a tax on the sale or purchase of goods where such sale or purchase takes place outside the State.
It is thus plainly meant that a State is not to tax sales which take place outside that State.
But, where does a sale take place ? Numerous elements go to make a sale, and they may take place in more than one State.
Under the law relating to the sale of goods, property passes on the happening of certain events.
When they happen, the sale is complete.
Now, a contract for the sale of goods may be entirely within one State when all parties are within the State, the offer and acceptance also take place there, and the goods are also within that State, and there, the property in the goods passes and delivery also takes place.
But it may also happen that the constituent elements may be spread over two or more States, some of the elements described above falling within one State and some others falling within one or more other States.
Prior to the Constitution, multiple taxation of a single transaction of sale was possible, and Provincial legislation then existing clearly demonstrates that States having Some connection with the sale because one or more elements took place within those States, treated this as sufficient nexus between the taxing power and the States, authorising them to tax sales even where property passed in another State.
The Constituent Assembly desired to achieve certain objects in the matter of taxation, particularly in relation to sales tax.
Article 286 achieves, among other objects, the avoidance of this multiple taxation.
The first sub clause of the Article is clear in its terms, when it says that a State cannot tax sales which take place outside the State.
The converse is also true, that is to say, that a State can tax a sale of goods which takes place within the State.
By sale here is meant a completed transaction by which property in the goods passes.
Before the property in the 915 goods passes, the contract of sale is only executory, and the buyer has only a chose in action.
" Property in the goods passes either by the fulfilment of the conditions of the contract, if any, or by the operation of the law relating to the sale of goods.
Starting from the basic fact that what is to be taxed under the Constitution is a sale completed by the transference of property in the goods, we have to see at what stage and where this happens.
The taxable event thus cannot be found at any earlier stage when the sale is not completed by the passing of property.
The critical taxable event is the passing of property in the goods as a result of a contract for their sale.
The parties to the contract can agree when that event is to take place, but where it happens may be a matter of some doubt and even of difficulty.
Where the parties have not agreed as to the time of the passing of property, the law relating to the sale of goods furnishes the answer.
There too, there may be the same difficulty as to the place of the passing of property.
The place of physical delivery of the goods does not help to solve this difficulty, because delivery may, precede or follow the passing of property in the goods.
Delivery of goods is, thus, not always an element which determines the completion of a sale, because the sale may be completed both before and after delivery.
The Constitution, however, thinks in. ' terms of a completed sale by the passing of property and not in terms of an executory contract for the sale of goods.
The essence of the matter being thus the passing of property in goods,, there was always a likelihood of more than one State claiming the right to tax the same transaction.
One State might claim that goods in which property passed were in that State, and hence property in the goods passed there.
Another State might claim that the conditions precedent to the passing of property were fulfilled in that State and hence the sale was completed by the passing of property there.
Yet another State might claim that property passed in that State according as one or more events connected with the passing of property took place within that State.
916 It was to avoid this welter of confusion as far as possible that the Explanation was added, and it also avoided multiple taxation.
The Explanation serves two purposes.
It indicates the State where the tax can be levied, and also indicates the State or States where it cannot.
It achieves these two purposes excluding all considerations as to where property the goods can be said to have passed under the law relating to the sale of goods.
The purpose is achieved by the Explanation and particularly by the non obstante clause in the Explanation.
Any State claiming to tax a sale of goods on the ground that it was completed by the passing of property in the goods in that State could not do so, if the goods as a direct result of the sale were delivered for the purpose of consumption in another State.
The Explanation creates a fiction that the sale must be deemed to have taken place in the latter State and not in the State where the sale was completed by reason of passing of property.
It thus discards the test of passing of property and adopts the test of delivery 'as a direct result of such sale for the purpose of consumption in that State '.
Where more than one State is involved, any State claiming to tax the sale by reason of something anterior to the passing of property would not be able to claim that the sale took place there unless it was also the State of delivery, because the sale is complete only on the passing Of property, and till the sale is complete, liability to tax does not arise.
Once the sale is complete, the delivery State gets the right to tax the sale by the fiction introduced.
Now, the Explanation must be ' interpreted according to its own tenor, and it is meant to explain el.
(1)(a) of the Article and not vice versa.
It is an error to explain the Explanation with the aid of the Article, because this reverses their roles.
The Explanation discards the test of passing of property, and adopts the test of delivery as a direct result of the sale for purposes of consumption.
This delivery may be in the State where the passing of property also took place, but then, there is no difficulty.
The sale is then entirely within the State.
The sale is outside 917 the State only when the passing of property takes place in the State, but that is not the State where the goods have been actually delivered as a direct result of the sale for purposes of consumption in that State.
The Constitution has, thus, for certain cases shifted and confined the situs of the taxable event to the State of the delivery of goods; but it must be remembered that this delivery,may precede as well as follow the passing of property.
It is, therefore, plain that no single element of the contract of sale is by itself a decisive factor in determining which State is to tax the sale where there are more States than one involved, except the test of actual delivery of the goods in a State as a direct result of the sale for purposes of consumption in that State, and it is that State and that State only which has the right to tax the sale and none other.
The Explanation is not applicable, unless there are more States than one involved.
It is only a key to find out which of the States is competent to tax and which are not, and is by no means a definition of an 'outside sale '.
It is an Explanation, which determines which State out of those connected with the transaction of sale can tax it.
The interpretation which we have placed upon the first sub clause of article 286(1) is substantially the same, as was placed in the earlier rulings of this Court.
In The State of Bombay and another vs The United Motors (India) Ltd. and others (1), it was pointed out that the Explanation formulated an easily applicable test to find out an 'outside sale ' and this, it was said, was done " by defining an inside sale ".
It was observed further: " Are the goods actually delivered in the taxing State, as a direct result of a sale or purchase, for the purpose of consumption therein ? Then, such sale or purchase shall be deemed to have taken place in that State and outside all other States ".
Certain reasons were given why this test was adopted, and it is these reasons and their effect on the second clause, which led to a re examination of the subclause in The Bengal Immunity Company Limited vs (1) ; 117 918 The State of Bihar and others (1).
The majority in that case touched upon the various grounds which were advanced before this Court, but declined to express "any final opinion upon the matter ".
The case went on to decide that the bans imposed by the two clauses of article 286 were independent, and needed to be separately enforced.
But, on the meaning of the Explanation, no different view was expressed.
Again, in M/8.
Ramnarain Sons Ltd. vs Asst.
Commissioner of Sales Tax and others(2), it was observed as follows: "So far as article 286(1)(a) is concerned, the Explanation determines by the legal fiction created therein the situs of the sale in the case of transactions coming within that category and when a transaction is thus determined to be inside a particular State it necessarily becomes a transaction outside all other States.
The only relevant enquiry for the purposes of article 286(1)(a), therefore, is whether a transaction is outside the State and once it is determined by the application of the Explanation that it is outside the State it follows as a matter of course that the State with reference to which the transaction can thus be predicated to be outside it can never tax the transaction (Italics supplied).
Now, in so far as this case is concerned, the words the Explanation determines by the legal fiction created therein the situs of the sale in the case of transactions coming within that category " in the extract last quoted, become important.
The first question to consider is whether these cases can be governed by the Explanation at all.
The learned Attorney General contends that the power to tax these transactions can only be found if the sales were 'Explanation sales ', in the sense that the goods were delivered as a direct result of the sale for consumption in West Bengal.
In our opinion, the explanation can apply only if more than one State is involved in the same transaction.
When there is no other State in which the goods can be said to be delivered for consumption, apart from the State where the property in the goods passed, the Explanation is not needed as a key.
The (1) (2) ; 492. 919 power to tax in those circumstances which is exercisable by virtue of transfer of title to the property, can only be taken away if there be some other State in ' which the goods as a direct result of the sale were delivered for consumption.
But if there is no such other State, the question does not arise.
In the present cases, there is no such rival State.
Where the purchaser buys goods in West Bengal for his own consumption, the test of an 'inside sale ' is satisfied when the property in the goods passes in the same State and all the elements of the contract of sale also take place inside it.
Where the property in the goods passes to a buyer who is also the 'ultimate ,consumer, the terms of the Explanation are themselves satisfied.
To exclude, thus, the powers of taxation of the State of West Bengal, the appellant Companies must be able to point out some other State where the goods can be said to have been delivered as a direct result of the sale for the purpose of consumption in that other State.
Unless they can do so and they have not so done before us they cannot invoke the Explanation, and the cases, to borrow the language of the last quotation, cannot be said to be "within that category ".
In our opinion, the learned Advocate General of West Bengal was right in his argument (which was accepted by the High Court) that the ban contained in article 286(1)(a) and the Explanation does not apply.
The appellant Companies next rely upon article 286 (1)(b), which provides that: " No law of a State shall impose or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place in the course of the. . export of goods out of, the territory of India ".
The contention is that the sales in question must be regarded as having taken place in circumstances which exempt sales under the sub clause.
This the appellant Companies argue from the following facts that aviation spirit is delivered outside the customs barrier, that aviation spirit is taken out of the territories of India, and that the sales occasion this 920 export.
They rely upon the definition of 'export ' in other Acts to show that the word means no more than 'taking out of the country '.
This clause of the Article has been construed on previous occasions by this Court, and what is meant by the expression " in the course of " has been well.
established.
Indeed, in State of Mysore vs Mysore Spinning and Manufacturing Co. Ltd. (1), this Court observed that the point could no longer be said to be at large.
Fortunately, there is less disagreement on this point than on the interpretation of the Explanation, and it is sufficient to refer to the leading decisions of this Court.
The earliest case on the subject is State of Travancore Cochin and others vs The Bombay Co. Ltd. (2), where four possible meanings of the expression " in the course of " were considered.
It is not necessary to refer to all of them here, and it is sufficient to point out that of the view that the clause is not restricted to the point of time at which goods are exported from India and that the series of transactions which necesssarily precede export of goods also come within the purview of the clause, it was said that it was too wide.
It was observed by this Court that: "A sale by export thus involves a series of integrated activities commencing from the agreement of sale with a foreign buyer and ending with the delivery of the goods to a common carrier for transport out of the country by land or sea.
Such a sale cannot be dissociated from the export without which ' it cannot be effectuated, and the sale and resultant export form parts of a single transaction.
Of these two integrated activities, which together constitute an export sale, whichever first occurs can well be regarded as taking place in the course of the other.
" The meaning of these observations was further explained in State of Travancore Cochin and others vs Shanmugha Vilas Cashew Nut Factory and Others (3).
It was observed (p. 62) that the words "export out of " in this context did not refer to the article or commodity exported, and that the reference to "the (1) A.I.R. 1958 section C. 1002.
(2) ; (3) ; 921 goods " and to the "territory of India " made it clear that the words " export out of " meant the exportation out of the country.
It was then added that, "The word 'course ' etymologically denotes movement from one point to another, and the expression 'in the course of ' not only implies a period of time during which the movement is in progress but postulates also a connected relation.
" This inter connection of the sale sought to be taxed with the course of export was emphasised again in clear terms thus : " The phrase 'integrated activities ' was used in the previous decision to denote that 'such sale ' (i.e., a sale which occasions the export) I cannot be dissociated from the export without which it cannot be effectuated, and the sale and the resultant export form parts of a single transaction '.
It is in that sense that the two activities the sale and export were said to be integrated.
A purchase for the purpose of export like production or manufacture for export, is only an act preparatory to export and cannot, in our opinion, be regarded as an act done I in the course of the export of the goods out of the territory of India ' any more than the other two activities can be so regarded.
" From the views here expressed, it follows that every sale or purchase preceding the export is not necessarily to be regarded as within the course of export.
It must be inextricably bound up with the export, and a sale or purchase unconnected with the ultimate export as an integral part thereof is not within the exemption.
It may thus be taken as settled that sales or purchases for the purpose of export are not protected, unless the sales or purchases themselves occasion the export and are an integral part of it.
The views expressed in these two cases were accepted and applied in State of Madras vs Gurviah Naidu and Co. Ltd. (1), Kailash Nath vs State of U.P. (2), State of Mysore vs Mysore Spinning and Manufacturing Co. Ltd. (3) and Gordhandas Lalji vs B. Banerjee (1) A.I.R. 1956 S.C. 158.
(2) A.I.R. 1057 S.C. 790.
(3) A.I.R. 1958 S.C. 1002.
922 and others (1).
These cases do not advance the matter further, and it is, therefore, not necessary to refer to them in detail.
In the earlier cases, it was not necessary to explain the meaning of the word 'export ', because there was always a foreign buyer to whom the goods were ultimately sent.
In none of the cases the facts found here were present.
Here, the buyer does not export the goods to a foreign country, but purchases them for his own use on the journey of the aircraft to foreign countries.
This difference is vital, and makes the position of the appellant Companies, if anything, weaker.
It is for this reason that the appellant Companies depend on a wide meaning of the word 'export ', which they illustrate from other Acts where the word is tantamount to "taking out of the country '.
We are of opinion that this meaning cannot be given to the word 'export ' in the clause.
The word 'export ' may conceivably be used in more senses than one.
In one sense, 'export ' may mean sending or taking out of the country, but in another sense, it may mean sending goods from one country to another.
Often,, the latter involves a commercial transaction but not necessarily.
The country to which the goods are thus sent is said to import them, and the words 'export ' and import ' in this sense are complementary.
An illustration will express this difference vividly.
Goods cannot be said to be exported if they are ordered by the health authorities to be destroyed by dumping them in the sea, and for that purpose are taken out of the territories of India and beyond the territorial waters and dumped in the open sea.
Conversely, goods put on board a steamer bound for a foreign country but jettisoned can still be said to have been exported ', even though they do not reach their destination.
In the one case, there is no export, and in the other, there is, though in either case the goods go to the bottom of the sea.
The first would not be within the exemption even if a sale was involved, while any sale in the course of the second taking out would be.
In both, the goods were taken out of the country.
The difference lies in (1) A.I.R. 1958 S.C. 1006.
923 the fact that whereas the goods, in the first example, had no foreign destination, the goods, in the second example, had.
It means, therefore, that while all exports involve a taking out of the country, all goods taken out of the country cannot be said to be exported.
The test is that the goods must have a foreign destination where they can be said to be imported.
It matters not that there is no valuable consideration from the receiver at the destination end.
If the goods are ex.
ported and there is sale or purchase in the course of that export and the sale or purchase occasions the export to a foreign destination, the exemption is earn.
Purchases made by philanthropists of goods in the course of export to foreign countries to alleviate distress there, may still be exempted, even though the sending of the goods was a not a commercial venture but a charitable one.
The crucial fact is the sending of the goods to a foreign destination where they would be received as imports.
The two notions of export and import, thus, go in pairs.
Applying these several tests to the cases on hand, it is quite plain that aviation spirit loaded on board an aircraft for consumption, though taken out of the country, is not exported since it has no destination where it can be said to be imported, and so long as it does not satisfy this test, it cannot be said that the sale was in the course of export.
Further, as has already been pointed out, the sales can hardly be said to 'occasion ' the export.
The seller sells aviation spirit for the use of the aircraft, and the sale is not integrally connected with the taking out of aviation spirit.
The sale is not even for the purpose of export, as explained above.
It does not come within the course of export, which requires an even deeper relation.
The sales, thus, do not come within article 286 (1)(b).
These sales must, therefore, be treated as made within the State of West Bengal.
The customs barrier is a barrier for customs purposes, and duty drawback may be admissible if the goods once imported are taken out of the country.
The customs duty drawbacks have nothing to do with the sale of aviation 924 spirit, which takes place in West Bengal.
The cus toms barrier does not set a terminal limit to the territory of West Bengal for sales tax purposes.
The sale beyond the customs barrier is still a sale, in fact, in the State of West Bengal.
Both the buyer and the seller are in that State.
The goods are also there.
All the elements of sale including delivery, payment of price, take place within the State.
The sale is thus completely within the territory of the taxing State.
No outside State is involved where the goods can be said to have been delivered for consumption as a direct result of the sale that takes place.
Article 286(1)(a) and the Explanation are wholly inapplicable, and the sale cannot, even by a fiction, be said to be outside the State of West Bengal.
No doubt, aviation spirit is taken out of the State and also the territory of India, but it cannot be said to have been exported or delivered for consumption in some other State.
The so called export is not occasioned by the sale, and the sale, on the authorities cited, is not in the course of export ', so as to attract article 286(1)(b).
The decision of the High Court was correct.
The appeals fail, and are dismissed with costs.
One hearing fee.
Appeal dismissed.
[/INST]In exercise of the powers conferred by section 3 of the: Essential commodities Art, 1955, the Assam Government made the Assam Foodgrains (Licensing and Control) Order, 1961.
This Order provided that no person could do business in foodgrains including, rice and paddy, in wholesale quantities except under a licence issued thereunder.
Clause 5 of, the Order laid down in sub.
(a) to (e) matters which the licensing authority shall, among other matters, which have regard to in granting or refusing a license sub cl.
(e) being whether the applicant is a co operative society".
In 1959, directions had been issued to all, licensing authorities by the Government that the rights of monopoly procurement had been given to Apex Co operative Society.
The petitioner applied for a licence but was refused in view of the provisions of sub cl.
(e) of cl. 5 of the Order.
The petitioner challenged the order refusing the licence on the grounds: (1) that sub clause (e) was ultra vires 937 as ' it was beyond the powers granted to the State Government under section 3 read with section 5 of the Act, and (ii) that sub cl (e) had been applied in a discriminatory manner with a view to create a monopoly in favour of the Apex Co operative Society.
Held, (per C.J., Das and Ayyangar, JJ.), that sub cl.
(c) of cl.
5 of the Order was not ultra vires section 3 read with section 5 of the Act, but the impugned,order rejecting the application of the petitioner was bad as it infringed the rights of the petitioner guaranteed under Arts, 14 and 19 of the Constitution.
Section 3 of the Act authorised the making of an order to achieve two objects, for maintaining or increasing supplies of essential commodities and for securing their equitable distribution and availability at fair prices.
Sub clause (e) of cl. 5 of the Control Order,, 1961, which enabled the licensing authority to ' prefer a cooperative society in certain circumstances in the matter of granting a licence, was not unrelated to the objects mentioned in s.3 of the Act.
A co operative society may, by reason of the place which it occupies in the village economy of a particular area, be in a better position for maintaining or increasing supplies of rice and paddy and even for securing their equitable distribution and availability at fair prices.
Ramanlal Nagardas vs M. section Palnitkar, A. I.R. 1961 Guj.
38, distinguished.
Sub clause (e) permitted the licensing authority to give preference to co operative societies in certain cases but it did not.
have the effect of creating a monopoly in favour of co operative societies.
In the present case the licensing authority refused licence to the petitioner for the only reason and purpose of granting a monopoly to co operative societies; it had administered the law in a discriminatory manner and for the purpose of achieving the ulterior object of creating a monopoly in favour of co operatives which object was not within sub cl.
(a), The licensing Authority was influenced, not by considerations mentioned in cl. 5 of the Order, but by the instruction issued by the ' State Government to grant licences to cooperatives only.
It was not proper for the, Government to issue instructions to the licensing authorities when they were required to act according to the provisions of law.
Per Sarkar and Mudholkar,JJ.
Sub clause (e) of cl. 5 of the Order served the object of section 3 of the Act to maintain or increase the supplies of essential 'commodities and to secure their equitable distribution and availability at fair prices and Was not ultra vires.
Even it the Order allowed only one class, namely cooperative societies, to do the business and prohibited others.
it would; still advance the objects, of, the Act; and the prohibition of the others.
doing the business would amount.
to, reasonable restrictions under article 19(6).
938 Narendra Kumar vs The Union of india, (ISM 2 S.C.R. 375 and Glass Chatons Imports a Users ' Association vs The Union of India, (W.P. 65 of 1959, unreported), relied on.
The licensing authority had not exercised its power under sub cl.
(e) in a discriminatory manner in the prevent case.
The authority was entitled to give preference to a co operative society and that is what it has done.
Though the result of this preference was to prevent the petitioner from carrying on his business, it was in the circumstances, a reasonable restriction on his right as it was necessary for securing foodgrains at reasonable prices and in adequate quantities.
There were no directions given, by the State Government in 1961 to licensing authorities to grant licences only to co operative societies and it could not be said that the licencing authority had only carried out the directions of the Government and had not acted independently.
In fact, the Order itself carried a direction in sub cl.
(e) to give preference to co operative societies.
The co operative societics formed a class by themselves and a provision giving preference to such a class better served the objects of the Act, and had a clear nexus with the object of the Act and did not offend article 14.
</s>
|
<s>[INST] Summarize the judgementAppeals Nos.
2138 and 2196 of 1966.
Appeals by special leave from the Award dated June 27, 1966 of the Sixth Industrial Tribunal, West Bengal in Case No. VIII 251 of 1965.
N. A. Palkhivala, Jatinder Mahajan, O.C. Mathur and Ravinder Narain, for the appellant (in C.A. No. 2138 of 1966) and the respondent (in C.A. No. 2196 of 1966).
A. S.R. Chari, R.K. Maheshwari and B.P. Maheshwari, for the respondents (in C.A. No. 2138 of 1966) and the appellants (in C.A. No. 2196 of 1966).
H.K. Sowani, K. RaJendra Chaudhuri and K.R. Chaudhuri, for intervener No. 1.
N. A. Palkhivala and D.N. Mukherjee, for intervener No. 2.
M.K. Ramamurthi, Shyamala Pappu and Vineet Kumar, for intervener No. 3.
R. J. Kolah and O.C. Mathur, for intervener No. 4.
N. A. Palkhivala and O.C. Mathur, for Intervener No. 5.
A. N. Parekh and Subhag Mal Jain, for intervener No. 6.
The Judgment of the Court was delivered by Shelat, J.
By a reference dated September 17, 1965, the Government of West Bengal referred to the Sixth Industrial Tribunal the following question for adjudication: "Whether computation of bonus in respect of the accounting year ending 31st March 1965 payable to the employees is in accordance with the payment of Bonus Ordinance ? If not, what should be the quantum of bonus for the employees ?" 754 The dispute between the appellant company and its employees arose in the following manner.
The company 's accounting yearis from 1st April to 31st March of the following year and its books of account are maintained on the mercantile system of accounting.
The company computed the amount of bonus payable to its employees under the Payment of Bonus Ordinance which was promulgated on May 29, 1965 and furnished on July 5, 1965 copies of its this computation to the three respondent Unions representing its employees.
The available surplus and allocable surplus, according to this computation, were Rs. 49.96 lacs and Rs. 29.98 lacs respectively.
On this basis the company declared the bonus at 13.28 per cent of the total wages paid to the employees.
According to this computation, the gross profits came to Rs. 2,70,61,234/ .
Out of this the company deducted the following amounts allowed under the Ordinance, namely: Rs. 28,64,000/ as depreciation admissible under the Income Tax Act, 1961; Rs. 9,00,000/ as development rebate.
Rs. 1,36,33,000/ as direct taxes.
Rs. 1,50,000/ as dividend on preference shares; Rs. 23,37,000/ as interest at 8.5 p.c. on paid up capital; Rs. 17,80,358/ as interest at 6 p.c. on reserves.
Thus the available surplus came to Rs. 49,96,876/ , sixty per cent of which, namely, Rs. 29,98,125/ was the allocable surplus.
The employees disputed the computation contending that the company had wrongly reduced the gross profits and the available surplus and that the following amounts should be added back, viz.
,provision for gratuity Rs. 18,38,605/ and provision for doubtful debts Rs. 50,000/ .
They also challenged deduction of interest on the reserves on the ground that the capital reserve of Rs. 57,00,151/ was artificially arrived at by a mere revaluation of the company 's fixed assets as on April 1, 1956.
They also disputed the figures of depreciation, development rebate and direct taxes deducted by the company while working out the available surplus.
Parliament in the meantime passed the which by sec.
40 repealed the Ordinance but which saved all things done and action taken under the 'Ordinance as having been done or taken under the Act.
On September 27, 1965 company paid, subject to the result of the reference, bonus at the rate of 13.28 percent of the wages including dearness allowance to its employees.
In its award the Tribunal allowed Rs. 23,48,226/ instead of Rs. 28,82,261/ claimed by the company as depreciation.
Simiearly it allowed only Rs. 7 lacs instead of Rs. 8,87,371/ claimed 755 by the company as development rebate.
As regards Rs. 18.38 lacs claimed under the head of gratuity, the Tribunal held that amount was not a reserve but a provision and, therefore, was not liable to be added 'back.
But it held that the company could deduct only Rs. 10 lacs and odd as also Rs. 1.31 lacs and Rs. 87,000/ and odd actually paid during the year to employees who retired during that year and added back the balance of Rs. 6 lacs to the gross profits.
Except for these amounts, the TribUnal accepted the rest of the company 's computation.
In the result the Tribunal found the available surplus and the allocable surplus to be 54 lakhs and odd and Rs. 32.42 lacs respectively and directed payment of bonus at 14.55 per cent of the total wages.
Both the Unions and the company obtained special leave and filed appeals challenging the correctness of the Award.
In the profit and loss account for the year 1964 65, the Company had shown Rs. 17 chores and odd as gross receipts and out of that amount had deducted diverse amounts as expenditure including the sum of Rs. 23,48,226/ by way of depreciation.
In its computation filed before the Tribunal, the Company, however, claimed depreciation at Rs. 28.82 lacs worked out by its auditors in accordance with the provisions of the Income Tax Act, 1961.
The Unions disputed this amount on the ground (1 ) that there was no evidence that the amount of depreciation came to Rs. 28.82 lacs and (2) that since the profit and loss account mentioned Rs. 23.48 lacs as depreciation, the company could claim that amount only.
The Tribunal accepted the Unions ' contention stating that there was nothing to show that the company through mistake had shown Rs. 23.48 lacs as depreciation in the profit and loss account and that subsequently on finding out the mistake it had revised in its computation depreciation at Rs. 28.82 lacs.
The Tribunal, as we shall presently show, was in error in confusing depreciation claimed by it as a deduction under sec.
6 of the Act and in thinking that the company had made or claimed to have made a mistake and was trying to correct such mistake.
Under sec.
205( 1 ) of the , no dividend can be declared or paid by a company for any financial year except out of profits arrived at after providing for depreciation in accordance with sub sec.
Sub sec.
(2) provides different methods of calculating depreciation, one of which is to calculate it by dividing 95 per cent of the original cost of each of the depreciable asset by a specified period in respect of each such asset.
The depreciation deducted in the expenditure column in the P&L account therefore was the depreciation worked out under sec.
205 ( 2 ) of the Companies 'Act.
Under sec.
2 ( 18 ) of the Bonus Act, gross profits mean gross profits calculated under sec.
In the case of companies other than a banking company, gross profits under Sec. 4 are to be computed in the manner laid 756 down in the 2nd Schedule.
That Schedule requires adding back to the net profit shown in the P & L account of depreciation deducted in that account while computing gross profits.
Obviously, the depreciation so to be added back is the one worked out by the company under sec.
205 (2 ) of the .
Section 6 of the Bonus Act provides that having arrived at the gross profits under sec.
4 read with the 2nd Schedule, the Company is entitled to deduct therefrom depreciation admissible under sec.
32( 1 ) of the Income Tax Act, that is, such percentage on the written down value as may, in the case of each of the classes of assets, be prescribed.
The fact that the company while preparing its P & L Account and its computation (exhibit 6) produced before the Tribunal, had kept the distinction between depreciation worked out under the and the one to be worked out under the Income tax Act for the purposes of the Bonus Act is clear from the evidence of its witness, Verma.
It was for this reason that Rs. 23 lacs and odd were shown as depreciation in the P & L Account while in the computation (exhibit 6) the company claimed Rs. 28.64 lacs as depreciation.
There was, therefore, no question of the company having made any mistake in calculating depreciation in the P & L Account or its trying to amend that mistake as erroneously thought by the Tribunal.
The only mistake, the company claimed it had made, was that the true figure of depreciation deductible under sec.
6(a) of the Bonus Act was Rs. 28.82 lacs and not Rs. 28.64 lacs.
The Company produced a certificate of its auditors (exhibit U 2) dated December 20, 1965 wherein the auditors certified that on the records produced before them the true figure of depreciation would be the revised figure of Rs. 28.82 lacs and not Rs. 28.64 lacs.
But the controversy between the parties was not confined to the difference between these two figures.
There were three figures for depreciation before the Tribunal, Rs. 23 lacs and odd shown in the P & L Account, Rs. 28.64 lacs shown in the computation and Rs. 28.82 lacs subsequently claimed by the company as the revised figure of depreciation.
The last two figures were taken by the company from its auditors ' certificate certifying first Rs. 28.64 lacs and, latex on, revising that figure to Rs. 28.82 lacs on certain further records and information produced before them.
The evidence of Verma shows clearly that the Unions disputed the Company 's calculations of depreciation.
When questioned by them, Verma could only say that the calculations were done not by him but by the Secretarial Department and, therefore, was not in a position to answer questions in that regard.
No witness from the Secretarial Department was produced.
As regards their books and records produced before the auditors, his only answer was: 757 "So far as books and records mentioned in the first part of Ext.
U 2 are concerned, the books and record relating to the branches were produced before the representatives of the, auditors ' firm there, and the other books and records were produced there before the auditors ' firm.
So far as the record mentioned in the second part of the certificate are concerned, they are different records.
The informations and explanations given to the auditors were given verbally after consulting our books of accounts".
These books and records not having been produced or disclosed, there was obviously no opportunity to the Unions to verify either of the two figures, viz., Rs. 28.64 lacs or Rs. 28.82 lacs.
It is true that Verma said that the calculations shown to the auditors could be produced but he qualified the offer by saying that would be done if the Tribunal required.
Since the company claimed the deduction of depreciation, it stands to reason that the burden of proof that the depreciation claimed by it was the correct amount in accordance with the Income Tax Act was on the Company and that burden the company must discharge once its figures were challenged.
But it was; contended that once the company produced its auditors ' certificate.
that should be sufficient and must be accepted and that the Tribunal should not insist either on the auditors proving their certificate or on the company proving depreciation on each and every item of depreciable asset.
Such an enquiry before the Tribunal, it was argued, would be a harassing and prolonged enquiry, not contemplated in industrial adjudication and, therefore, the Tribunal ought to have accepted as correct Rs. 28.82 lacs certified by the auditors.
Under sec.
23 of the Act the presumption of accuracy is allowed only to the balance sheet and the P & L Account of companies.
No such presumption is provided for by the Act to auditors ' certificates.
Speaking of rehabilitation amount deductible as a prior charge under the Full Bench formula while working out the available surplus this Court in Khandesh Spg.
ana Wvg.
Mills Co. Ltd. vs Rashtriya Girni Kamgar Sangh(1) observed at page 847 as follows: "The importance of this question (the procedure to be followed for ascertaining facts) in the context of fixing the amount required for rehabilitation cannot be over estimated.
The item of rehabilitation is generally a major item that enters.
into the calculations for the purpose of ascertaining the surplus and, therefore, the amount of bonus.
So, there would be a tendency on the part of the employer to inflate this figure and the (1) ; ,847.
C. 1./69 2 758 employees to deflate it.
The accounts of a company are prepared by the management.
The balance sheet and the profit and loss account are also prepared by the company 's officers.
The labour have no concern in it.
When so much depends on this item, the principles of equity and justice demand that an Industrial Court should insist upon a clear proof of the same and also give a real and adequate opportunity to the labour to canvass the correctness of the particulars furnished by the employer.
" The necessity of proper proof of the correctness of statements in the balance sheet was repeated in Petlad Turkey Red Dye Works Ltd. vs Dyes & Chemical Workers ' Union(1).
These observations made with regard to balance sheets and P & L accounts would equally apply to statements made in ,the auditors ' certificates 'prepared on the instructions and information supplied to them by employers.
Mere production of auditors ' certificate, especially when it is not admitted by labour, not by the auditors but by the employees of the company who admitted not to have been concerned with its preparation or the calculations on which it was based.
would not be conclusive.
We do not say that in such a case the Tribunal should insist upon proof of depreciation on each and every item of the assets.
It should, however, insist on some reasonable proof of the correctness of the figure of depreciation claimed by the employer either by examining the auditors who calculated and certified it or by some other proper proof.
Depreciation in some cases would be of a large amount affecting materially the available surplus.
Fairness, therefore, requires that an opportunity must be given 'to the employees to verify such figures by cross examination of the employer or his witnesses who have calculated depreciation amount.
Notwithstanding the Unions ' challenge to the figure of depreciation claimed by the company, the only thing that the company did was to examine Verma, who admittedly had nothing to do with its calculation, and to produce through him the said certificate.
In our view, that was neither proper nor sufficient.
The proper course for the Tribunal in such a case was to insist upon the company adducing legal evidence in support of its claim instead of taking the figure of depreciation from the P & L account which was not worked out in accordance with the Income Tax Act but under sec.
205 of the , and saying that the Company had failed to prove that it was a mistaken figure.
In our view, the question as to the correct amount of depreciation must go back to the Tribunal for a fresh decision.
The Tribunal should give opportunity to the Company to prove its claim for depreciation by reasonable proof and to the Unions to test such evidence by cross examination or otherwise.
(1) ; , 909.
759 An error of the same type seems to have been committed by the Tribunal in the matter of development rebate.
It allowed Rs. 7 lacs as development rebate.
instead of Rs. 8.87 lacs.
claimed by the Company.
Under sec.
33 of the Income Tax Act, an assessee is allowed by way of development rebate a certain percentage of the cost of machinery or plant depending on the date of its installation.
Section 34(3) of that Act provides, however, that the said allowance shall not be given unless an amount equal to 75 per cent of the development rebate to be allowed is debited to the P & L account of the relevant previous year and credited to a reserve account to be utilised by the assessee in the 8 years next following for the purposes of the undertaking.
Accordingly, the Company appropriated Rs. 7 lacs to the development rebate reserve as it was bound to do if it wanted to claim development rebate.
The Company took the round figure Rs. 9 lacs instead of Rs. 8.87 lacs for development rebate and credited Rs. 7 lacs, being 75 per cent thereof to the development rebate reserve.
Under the Second Schedule to the Bonus Act, read with sec.
4 thereof the Company is required while computing its gross profit to add the development rebate and as footnote 1 in that Schedule shows "to the extent charged to profit and loss account", that is, Rs. 7 lacs.
Under sec.
6(b) of the Bonus Act, the Company is entitled, however, to deduct out of the gross profits arrived at under sec.
4, the whole of the development rebate admissible under the Income Tax Act, i.e., the amount, 75 per cent of which comes to Rs. 7 lacs.
The error which the Tribunal fell into was in mixing up the development rebate reserve to which the Company had to appropriate Rs. 7 lacs in P & L account and the development rebate of Rs. 8.87 lacs allowable to it under sec.
6 of the Act.
Mr. Chari for the Unions fairly conceded that he could not challenge this position.
There was, therfore, no justification for the Tribunal to allow Rs. 7 lacs only instead of Rs. 8.87 lacs as development rebate.
The next question relates to a sum of Rs. 18.38 lacs, being the estimated liability under two gratuity schemes framed by the Company, which was deducted from the gross receipts in the P & L account.
In 1960 the Company introduced a gratuity scheme for its employees other than its officers.
Under that scheme gratuity was payable on the termination of an employees 's service either due to retirement, death or termination of service, the amount of gratuity payable being dependent on his wages at that time and the number of years of service put in by him.
The Company had worked out on an actuarial valuation its estimated liability and made provision for such liability not all at once but spread over a number of years.
Thus in 1959 60, 1960 61 and 1961 62 the Company allocated towards this liability Rs. 5 lacs.
Rs. 10 lacs and Rs. 5 lacs respectively from out of the profits, 760 debiting these amounts in the profits and loss account.
In all Rs. 40 lacs have so far been provided in the aforesaid manner against the said liability.
The practice followed by the Company is that every year the Company works out the additional liability incurred by it on the employees putting in every additional year of service.
Whenever an employee retires, the amount of gratuity payable to him is debited against the amount provided for as aforesaid.
The amount so paid is not debited in the P & L account as an outgoing or expenditure but against the estimated liability provided as aforesaid.
In 1964 65 the, Company introduced a similar gratuity scheme for its officers.
According to the Company, the estimated liability under this scheme was worked out at Rs. 20 lacs.
But instead of providing the whole for it provided only Rs. 11.31 lacs.
It also provided Rs. 7 lacs under the scheme for its non officers against the liability for service put in by them in that year.
Out of Rs. 18.38 lacs so provided, the Company paid as gratuity Rs. 1,31,585/ and Rs. 87,295/to officers and other employees who retired during 1964 65, debiting as aforesaid, these amounts not as an outgoing or expenditure but against the said amounts of Rs. 11 lacs and Rs. 7 lacs.
The Company claimed that it was entitled to.
deduct the balance of Rs. 16 lacs from the gross receipts in the P & L account while working out its net profit.
The Unions contended that the Company could deduct from the gross receipts only Rs. 1.31 lacs and Rs. 87,000/ and odd actually paid during the year.
The Company, on the other hand, maintained that what it had 'done was legitimate and was warranted by the principles of accountancy and, therefore, the whole amount of Rs. 18.38 lacs was deductible in arriving at its net profits.
What the Tribunal did, however, was that instead of squarely facing this controversy, it held that as the Company had in the former years debited Rs. 5 lacs e.g., in 1959 60 and 1961 62, it would allow only Rs. 5 lacs for each of the two schemes.
Thus it allowed Rs. 10 lacs as dubitable in the P & L account in addition to the said Rs. 1.31 lacs and Rs. 87,000/ and disallowing the balance of Rs. 6 lacs added back that amount in the net profits shown in the P & L account.
The contention of Mr. Chari was two fold: (1 ) that the amount which could be debited was that which was actually paid and the Company was not entitled to debit in the P & L account any amount worked out by it as estimated liability.
The Tribunal.
therefore, was not justified in allowing the Company to debit any such amount and that the Tribunal arbitrarily fixed Rs. 10 lacs and allowed wrongly that amount to be deducted; and (2) even if such estimated liability was debitable, the appropriation amounted to a reserve and under the Bonus Act such a reserve had to be 761 added back while working out the gross profits under the 2nd Schedule to the Act.
Two questions, therefore, arise: (1) whether it is legitimate in such a scheme of gratuity to estimate the liability on an actuarial valuation and deduct such estimated liability in the P & L account while working out its net profits; and (2).i.f it is, whether such appropriation amounts to a reserve or a provision.
If it is a reserve, obviously the amount has to be added back while computing the gross profits.
But in that event the Company would be entitled to interest thereon at 6 per cent per annum under Item 1 (iii) of the Third Schedule to the Act.
In the case of an assessee maintaining his accounts on mercantile system, a liability already accrued, though to 'be discharged at a future date, would be a proper deduction while working out the profits and gains of his business, regard being had to the accepted principles of commercial practice and accountancy.
It is not as if such deduction is permissible only in case of amounts actually expended or paid.
Just as receipts, though not actual receipts but accrued due or brought in for income tax assessment, so also liabilities accrued due would be taken into account while working out the profits and gains of the business.
A Company carrying on business of buying land and selling it after development sold certain plots, received a part of the price but entered the whole of the price receivable as it maintained its books of accounts on mercantile method.
It also debited a certain sum, being the estimated expenditure for the developments it undertook to carry out within six months from the execution of the sale deeds although no part of such expenditure was actually incurred during that year.
It was held that having regard to the accepted commercial practice and trading principles and there 'being no prohibition against it in the Income Tax Act, deduction of such estimated liability even though it did not come under any specific provisions of sec.
10(2) of the Income Tax Act, 1922 was permissible; (see Calcutta Company Ltd. vs CJ.T.(1) Such a deduction of an accrued liability though not actually paid is not confined to the Income Tax Act only but is also perrnissible under the Wealth Tax Act, 1957.
In Commissioner of Wealth Tax vs Standard Vacuum Oil Co. Ltd.( 2) demands in respect of payment of tax under sec.
18A of the Income Tax Act, 1922 were made against the 'assessee company for 1956 57.
The final installment of Rs. 47 lacs and odd for each of the two years was outstanding on the respective valuation dates.
The question was whether the demand ,for such tax could be deducted while determining the net wealth of the Company.
This Court held that a debt is "owed ' when an order is passed under sec.
18A and a notice of demand is sent.
The amount mentioned in the notice begins to be 'owed ' till a new figure is (1) [1960]1 S.C.R. 185.
(2) ; 762 substituted by the assessee under sec.
18A(2) of the Income Tax Act.
But till that is done, the amount is ascertained and there is a statutory liability to pay the amounts mentioned in the order under sec.
18A(1) and were debts on the valuation dates and, therefore, deductible for the purpose of arriving 'at the Company 's net wealth.
The Court also held that a condition subsequent, the fulfilment of which may result in the reduction or even extinction of the liability, would not have the effect of converting that liability into a contingent liability.
The decision, no doubt, turned on the meaning of 'debt ' as defined by sec.
2(m) of the Wealth Tax Act, the.
Court there holding that the statutory liability to pay the amount mentioned in the order commenced when the demand notice was served and, therefore, the liability did exist in present.
In Kesoram Industries and Cotton Mills Ltd. vs C.W.T.(1) also a case under the Wealth Tax Act, the appellant company showed in its P & L account two amounts: (1 ) the amount of dividend proposed to be distributed for that year and (2) another sum as a provision for tax liability under the income Tax Act, 1922.
The question was whether these two sums were debts and could be deducted while computing the Company 's net wealth.
It was held that the dividend amount was not a debt as on the valuation date nothing more than a recommendation by the Directors had taken place.
But as regards the estimated tax liability, it was held that it was a debt inasmuch as the liability to pay the tax was in present though payable in future and was in respect of an ascertainable sum of money.
In Standard Mills Co. Ltd. vs Commissioner of Income Tax(2) the decision turned on the question whether an estimated liability under gratuity schemes framed under Industrial awards amounted t0 debts and could be deducted while computing the net wealth.
On reliance having been placed on Southern Railway of Peru Ltd. vs Owen(a) a decision to which we shall presently come the Court observed ' at page 773 that decision had no relevance to the question before it as the House of Lords in that decision was concerned in determining the deductibility of the present value of a liability which may arise in future in the computation of taxable income for the relevant year under the Income Tax laws The Court held, in view of the terms of sec.
2(m) of the Wealth Tax Act, that as the liability to pay gratuity was not in presents but would arise in future on the termination of service i.e. on retirement, death or termination; the estimated liability under the schemes would not be a debt and, therefore, could not be deducted while computing the net wealth.
These observations show that the Court was of the view that though such a liability is a contingent liability and therefore not a 'debt ' under sec.
2(m) of the Wealth Tax Act, it would be deductible under the Income Tax Act while (1) ; (2) ; (3) ; 763 computing the taxable profits.
In the instant case, the question is not whether such estimated liability arising under the gratuity schemes amounts to a debt or not.
The question that concerns us is whether while working out the net profits a trader can provide from his gross receipts his liability to pay a certain sum for every additional year of service which he receives from his employees.
This, in our view, he can do, if such liability is properly ascertainable and it is possible to arrive at a proper discounted present value.
Even if the liability is a contingent liability, provided its discounted present value is ascertainable, it can be taken into account.
Contingent liabilities discounted and valued as necessary can be taken into account as trading expenses if they are sufficiently certain to be capable of valuation and if profits cannot be properly estimated without taking them into account.
Contingent rights, if capable of valuation, can similarly be taken into account as trading receipts where it is necessary to do so in order to ascertain the true profits: (see C.N. Beatti 's Elements the Law of Income and Capital Gains Taxation 8th ed. 54).
In Southern Railway of Peru Ltd. vs Owen(1), the House of Lords was concerned with the problem similar to.
the one before us and, therefore, the observations made there would be of assistance.
An English Company operating a railway in Peru was under the laws of that country liable to pay its.
employees compensation on the termination ' of their services either by dismissal or on termination of service by notice or on such termination by death or affluence of contractual time.
The compensation so paid was an amount equivalent to one month 's salary at the rate in force at the date of determination of every year of service.
The Company claimed to be entitled to charge against each years receipts the cost of making provision for the retirement payments which would ultimately be thrown on it, calculating the sum required to be paid to each employee if he retired without feature at the close of the year and setting ' aside the aggregate of what was required insofar as the year had contributed to the aggregate.
The House of Lords rejected the deductions on the ground that in calculating the deduction the company had ignored the factor of discount.
But their Lordships recognised the principle that the company was entitled to charge against each year 's receipts the cost of making provision for the retirement payments which would ultimately be payable as the company had the benefit of the employees ' services during the year provided the present value of the future payments could be fairly estimated.
The contention on behalf of the Crown was very nearly the same as the one before us.
Counsel conceded, that a trader computing his taxable profits for a particular year may properly deduct not only the payments actually made to his employees but (1) ; 764 also the present value of any payments in respect of their services in that year to be made in a subsequent year if it can be satisfactorily estimated.
But it was argued that proposition would not apply to that case as the company was not in any year under a definite obligation to pay its employees lump sums on the termination of their employment as in each case the right to a lump sum was contingent on certain conditions being fulfilled and ' so the prospective liability remained contingent until the service was actually ended.
The lump sum could not be regarded as earned or payable in respect of a particular year of service and, therefore, the whole sum should be debited in the account of the last year of service.
This contention was not upheld.
In the course of his opinion, Lord Radcliffe cited with approval the dictum of Lord Haldane in Sun Insurance Office vs Clark(1) at p. 455, namely: "It is plain that the question of what ,is or is not profit or gain must primarily be one of fact, and of fact to be ascertained by the tests applied in ordinary business.
Questions of law can only arise when (as was not the case here) some express statutory direction applies and excludes ordinary commercial practice, or where, by reason of its being impracticable to ascertain the facts sufficiently, some presumption has to be invoked to fill the gap.
" Holding that there was no such statutory rule prohibiting the commercial practice of providing for such an estimated liability for each year, he compared the: two systems and observed at pp.
351 352 as follows: "Now the question is how ought the effects of this statutory scheme to be reflected in the appellant 's accounts of the annual profits arising from its trade ? One way, which is certainly the simplest one, is to let the payments made fall entirely as expenses of the year of payment and ignore any question of making provision for the maturing obligation during the years of service that precede it . .
It has one considerable advantage; no element of estimate or valuation appears in the profit assessment and nothing is charged to profits except the actual cash outgoing.
But, when this has been conceded, I think that there is the very serious disadvantage to be set against the inefficient method of arriving at the true profits of any one year.
The retirement benefit is not obviously paid to obtain the services given in the year of retirement.
The incident of retirement payments must be variable from year to year, and (1) ; 765 they may inordinately depress the profits of one year just as they may inordinately inflate the profits of another.
It is true that the company carries on business from one year to another, but it is not charged on the average of its annual profits.
Tax rates and allowances themselves vary and, apart from that, to charge tax on a profit unduly accelerated or unduly deferred is, in my opinion, no more respectable an achievement than to admit that the annual accounts of business do in some cases require the introduction of estimates or valuations if a true statement of profit i,s to be secured.
Another method is that which the appellant is seeking to establish with regard to its assessments for the four years 1947 1950 . .
What the appellant claims the right to do is to charge against each year 's receipts the cost of making provision for the retirement payments that will ultimately be thrown upon it by virtue of the fact that it has had the benefit of its employees ' services during that year.
As a corollary it will not make any charge to cover the actual payments made in the year in respect of retirement benefits.
Only by such a method, it is said, can it bring against the receipts of the year the true cost of the services that it has used to earn those receipts.
Generally speaking, this must, I think, be true.
For, whereas it is possible that any one of its many employees may forfeit his benefits and so never require a payment, the substantial facts of the situation are that when the company has paid every salary and wage 'that is due for current remuneration of the year it has not by any means wholly discharged itself of the pecuniary burden which fails upon it in respect of the year 's employment.
" Agreeing with the company 's claim he observed that provision for retirement payments would give an accurate reflection of the true costs of earning the year 's receipts than merely charging against them the year 's payment to employees who retired in the year.
That there is no rule against providing for any such contingent liability but on the contrary such a provision is permissible can be seen from the form of balance sheet in Schedule VI to the where provisions for taxation, dividends.
provident fund schemes, staff benefit schemes and other items for which a company is contingently liable are to be treated as current liabilities and, therefore, dubitable against the gross receipts.
Schedule VI, , lays down the requirements of profit and loss account and el. 3 (ix) of it provides that a profit and loss account shall set out amongst other things the aggregate of amounts set aside or provisions made for meeting.
specific liabili 766 ties, contingencies or commitments.
But the contention was that though Schedule VI to the may permit a provision for contingent liabilities, the Income tax Act, 1961 does not, for under sec.
36(v) the only deduction from profits and gains permissible is of a sum paid by an assessee as an employer by way of his contribution towards an ' approved gratuity fund created by him for the exclusive benefits of his employees under an irrevocable trust This argument is plainly incorrect because sec.
36 deals with expenditure deductible from out of the taxable income already assessed and not with deductions which are to be made while making the P & L account.
In our view, an estimated liability under gratuity schemes such as the ones before us, even if it amounts to a contingent liability and is not a debt under the Wealth Tax Act if properly ascertainable and its present value is fairly discounted is deductible from the gross receipts while preparing the P & L account.
It is recognised in trading circles and we find no rule or direction in the Bonus Act which prohibits such a practice.
The next question is whether the amount so provided is a provision or a reserve.
The distinction between a provision and a reserve is in commercial accountancy fairly well known.
Provisions made against anticipated losses and contingencies are charges against profits and, therefore, to be taken into account against gross receipts in the P & L account and the balance sheet.
On the other hand, reserves are appropriations of profits, the assets by which they are represented being retained to form part of the capital employed in the business.
Provisions are usually shown in the balance sheet by way of deductions from the assets in respect of which they are made whereas general reserves and reserve funds are shown as part of the proprietor 's interest: (See Spicer and Peglar 's Book keeping and Accounts, 15th ed.
p. 42).
An amount set aside out of profit and other surpluses, not designed to meet a liability contingency commitment or diminution in value of assets known to exist at the date of the balance sheet is a reserve but an amount set aside out of profits and other surpluses to provide for any known liability of which the amount cannot be determined with substantial accuracy is a provision, (see William Pickles Accountancy, Second Edn., 192, Part III, cl. 7, Sch.
VI to the which defines provision and reserve).
Under sec.
23 of the Bonus Act, there is 'a presumption of the genuineness of the P & L account produced by the company unless it is challenged in the manner provided therein.
The Company 's case was that the estimated liability under the gratuity schemes in respect of the accounting year was ascertainable with fair accuracy under the actuarial valuation and Rs. 16 lacs which it took into account while making it P & L account was the 767 present discounted liability.
This position does not seem to have been disputed before the Tribunal.
The principal contention urged against that figure was not that the estimated liability was not ascertainable or as in the case of Southern Railway of Peru(1) that it did not represent the present discounted value, but that the Bonus Act permits only the deduction of the amount actually paid during the accounting year.
This was also the principal contention of Mr. Chari before us.
Mr. Ramamurthi, appearing for one of the interveners, argued that though it may be possible to take into account such a contingent liability in arriving at the true profits and gains under the Income tax Act, it would not be so under the Bonus Act as the scheme of the Act treats the accounting year as a unit and, therefore, reserves or provisions on the footing of estimated liabilities to be paid in future cannot be taken into account.
But under the Income tax Act also the previous year is a unit and it is only the profits and gains during that year which are taxable.
If under the Income tax Act an estimated liability ascertainable with substantial accuracy can be taken into account for arriving at the true profits and gains, there is no reason why the same cannot be done under the Bonus Act unless 'there is any provision therein forbidding such a practice recognised by commercial accountancy.
No such provision was shown to exist in the Bonus Act.
The Tribunal in allowing Rs. 10 lacs out of the estimated 'Rs. 16 lacs impliedly accepted the principle canvassed by the company.
It, however, allowed only Rs. 10 lacs because it thought it to be excessive as in some prior years the Company had deducted Rs. 5 lacs.
But this was not done on the ground that the estimate of Rs. 16 Iacs was not warranted on any valuation.
In our view, in the absence of any challenge as to the correctness of the valuation and in the absence of any challenge that such liability cannot be estimated on any fair standard, the Tribunal ought to have allowed the whole of Rs. 16 lacs to be deducted while arriving at the net profits in the P & L account.
Turning now to the appeal filed by the employees two question besides those already disposed of were raised: one dealing with interest on capital reserve and the other relating to the amount of direct taxes to be deducted from the gross profits.
As regards the first question, Verma 's evidence was that the Company had revalued its fixed assets in 1956.and credited the difference of Rs. 57 lacs between its cost and the value fixed on such revaluation, to the capital reserve.
The Tribunal accepted the valuation as bona fide and allowed interest on the said reserve at 6 per cent in accordance with sec.
6(d) and el. 1 (iii) of the 3rd Schedule.
Mr. Chari 's contention was that the revaluation (1) ; 768 by the director in 1956 was fictitious; that the difference of Rs. 57 lacs was a mere book adjustment and did not add to the wealth of the Company and though that amount was transferred to the capital reserve it was not as if any additional amount became available for the Company 's business and therefore, no interest was permissible on such an artificial amount.
At first blush it would seem as if there is some force in this contention, for it would be possible for a company to deflate its gross profits by fictitiously revaluing its fixed assets at regular intervals red claiming interest on the excess by carrying such excess to capital reserve and to reduce thus labor 's claim to bonus.
In the present case the revaluation was made as early as in 1956 and it does not appear that it was ever objected to either by 'the Company 's auditors or by any one else concerned with the Company 's management.
It cannot, therefore, be legitimately said that it was done for any oblique purpose, much less with a view to defeat the labor 's claim to bonus.
It is true that such revaluation does not bring in any tangible additional amount into the company 's coffers which it can use for its business.
But under sec.
211 of the every balance sheet of a company must give a true and fair view of the state of affairs of the company as at the end of the financial year.
VI to the also provides that where sums have been written off on a reduction of capital or a revaluation of assets the balance sheet subsequent to such reduction or revaluation must show the reduced or the increased figures as the case may be.
Apart from the provisions of the , it is a recognised principle of accountancy to transfer the increased value of assets on revaluation to a capital reserve account.
Such an increased figure is an unrrealised accretion in the value of a fixed asset.
(see Pickles Accountancy 2nd Edn.
103 and 935).
So that the fact such an increased figure does not actually bring in any additional amount to the Company does not make the capital reserve any the less a reserve.
Nor is it possible to postulate that if such a claim is allowed to be deducted, the management would go on artificially inflating the value of the fixed assets with a view 'to claim interest.
In the first place, if such an inflation is made mala fide, the Tribunal can always reject it.
In the second place, it is hardly profitable for a company to resort to such a practice for under the Wealth Tax Act the company would be liable to an increased assessment.
Section 7(2) of that Act provides that where an assessee is carrying on a business for which accounts are maintained regularly, the Wealth Tax Officer may instead of determining separate the value of each asset held by the assessee determine the net value of the asset of the business as a whole having regard to the balance sheet of such business as on the valuation date.
In Kesoram Industries vs Commissioner of Wealth Tax(1) the assessee sought (1) ; 769 to argue exactly what Mr. Chari contended, namely, that the revaluation of the assets made by him did not represent the true value of the assets.
That contention was rejected and this Court held that the Wealth Tax Officer was entitled to rely on such revaluation and proceed to assess on the basis of the net wealth shown as a result of such revaluation.
We do not, therefore, see any justification for the apprehension felt by Mr. Chaff, for, by trying to reduce the gross profits, the Company would land itself into being assessed on a higher net wealth.
The Tribunal was, in our view, right in accepting the figure of Rs. 57 lacs and deducting interest thereon from the gross profits.
There remains now the question regarding computation of direct taxes.
Section 6(c) of the Act provides: "subject to the provisions of section 7, any direct tax which the employer is liable to pay for the accounting year in respect of his income, profits and gains during that year;" Section 7 inter alia provides: "For the purpose of clause (c) of section 6, any direct tax payable by the employer for any accounting year shall, subject to the following provisions.
be calculated at the rates applicable to the income of the employer for that year, . .
The Company claim a deduction from the gross profits of Rs, 145 lacs as direct taxes.
It had made provision, however; for Rs. 130 lacs for direct taxes in the P & L account.
In its computation it had made a provision for Rs. 136 Iacs.
At the stage of the evidence and arguments it contended however that the proper amount would be Rs. 145 lacs.
It claimed that direct taxes are to be worked out under sec.
6(c) on the gross profits worked out under sec.
4 less the prior charges allowable under sec, 6, namely, depreciation and development rebate, but without deducting from such balance the bonus payable by the Company in the particular accounting year.
The Tribunal accepted the contention and allowed Rs. 145 lacs.
as direct taxes to be deducted under section 6 (c).
This conclusion has been seriously disputed by the Unions.
Mr. Chari 's argument was that the Act lays down its own statutory formula for working out available surplus and allocable surplus, that the deduction from gross profits allowable are those permissible under the Act, namely, depreciation admissible in accordance with the provisions ' of sec.
32(1) of the Income tax Act, the development rebate and subject to the provisions of sec.
7 of the Act, the amount of direct taxes which the employer "is liable to pay" for the accounting year in respect of "his income, profits and gains during that year".
Mr. Chari laid stress on the 770 words "is liable to pay" ' and "in respect of his income, gains and profits during that year" and argued that inasmuch as cl.
(c) incorporates 'the language of the Income tax Act, it contemplates that the employer is entitled to deduct his actual tax liability.
Such liability, therefore, is to be worked out in accordance with the provisions of the Income tax Act and other relevant Acts by first arriving at the actual taxable income, gains and profits under those Acts and then computing the taxes at rates provided by them for that particular accounting year.
He argued that since cl.
(c) is subject to the provisions of section 7, the only departure permissible under the Act is that which is provided in section 7.
His contention thus was that the Tribunal must start its calculations from the net profit shown in the P & L account which would have made provision for direct taxes and then deduct from the gross profits calculated under section 4 the prior charges permissible under section 6.
The provision for direct taxes made in the P & L account would be computed after deducting from the gross receipts such deductions, allowances, reliefs, rebates, credits etc.
as are permissible under the Income tax Act which would include the bonus amount payable during the year, for, without such deduction the P & L account cannot reflect the true net profit of the employer.
The Company 's contention, on the other hand, was that the employer is entitled to compute his tax liability without deducting first the amount of bonus he would be liable to pay from out of the amount computed under section 4 and section 6.
Mr. Palkhiwala submitted from the different provisions of the Act that the concept of actual tax liability under the Income tax Act is foreign to the Bonus Act inasmuch as the Bonus Act is concerned with gross profits calculated in accordance with section 4 and Sch.
II, and that section 7 to which section 6(c) is made subject, militates against the concept of actual tax liability as worked out under the Income tax Act.
The contention was that prior to the enactment of the Act when available surplus was worked out under the Full Bench Formula bonus was not deducted while arriving at.
the amount of income tax deductible from gross profits, that Parliament could not possibly have contemplated a departure from the course followed in a number of decisions both of courts and tribunals and suddenly decided to incorporate into this Act the complicated and elaborate provisions of the Income tax Act and throw the burden on Industrial Tribunals to work out deductions, allowances, reliefs, rebates etc.
under the Income tax Act and then finally to assess the actual tax liability.
It was submitted that what has to be done by the Tribunal is first to work out gross profits under section 4 and Sch.
II and then to deduct therefrom the prior charges under section 6 (a ) and (b) and estimate direct taxes on the balance and thus arrive at the available surplus.
The controversy thus is one of principle rather than on the amount deducted by the Tribunal by way of direct taxes.
771 Before we attempt to resolve this controversy, it will be worth our while to recount the principle consistently follow before the passing of this Act, not with a view to interpret section 6(c), but to ascertain whether Parliament has made a departure from that principle and laid down a new procedure on which direct taxes are to be computed.
Mr. Chari 's contention was that the Bonus Act is drafted on a clean slate giving a go bye to the earlier principle of working out bonus, and, therefore, we must proceed on the footing of the language used in section 6(c).
At first sight it would appear that the language of el.
(c) lends support to his contention.
But acceptance of that contention would mean incorporating into the Bonus Act the elaborate and complicated provisions of not only the Income tax Act but other Acts levying direct taxes and throwing a considerable burden on Tribunals, least equipped with working out the provisions of those Acts entailing inevitably prolonged enquiries.
Therefore, we must proceed cautiously in examining the scheme of.
the Act before we conclude on the interpretation to be given to section 6(c) and section 7.
Calculating the avail.
able surplus under the Full Bench Formula used to work out nationally the amount of bonus which they thought would be awarded and deducted that amount from the gross profits, on the remaining balance of which, income tax payable by the employer would be determined.
The result of this procedure was that the amount of tax so worked out was proportionately less.
Deprecating this procedure, Gajendragadkar, J., (as he then was) observed in Associated Cement Companies Ltd. vs The Workmen(1) as follows: "Logically it is only after all the prior charges have been determined and deducted from the gross profits that available surplus can be ascertained; and it is only after the available surplus is ascertained that the question of awarding bonus can be considered.
Some tribunals seem 'to work out nationally the amount of bonus which they think can be awarded and placed that amount higher up in the process of making, calculations before the income tax payable is determined .
We wish the make it clear that this procedure should not be followed." In Crompton Parkinson (Works) Private Ltd. vs Its Workmen(2) disapproval of the said procedure was once again voiced, Das, C.J. observing that such a procedure is certainly not giving effect to the bonus formula "but amounts to ad hoc determination which may vary according to the length of the proverbial foot of the Lord Chancellor and is bound to lead to chaos and industrial unrest.
" In Workmen of India Explosives Ltd. vs Indian Explosives (1) (2) [1959] Supp.
2S.C.R. 936.
772 Ltd.(1) the labour relied on the report of the Directors which was to the effect that no income tax was payable on the year 's result and a total of Rs. 62.39 lacs made up of income tax and development rebate was being carried forward.
On this report it was argued that No. deduction should be made for income tax.
Negativing 'the contention it was held that in the application of the Full Bench Formula the deduction of income tax is notional, the gross profits are arrived at by adding back certain items to the net profits and then the gross profits are reduced by making certain notional deductions, one such deduction is under the head of income tax.
It was held that this deduction is not made on the actual amount payable, but what would be nationally payable on the profits determined under the Full Bench Formula and that if the argument on behalf of the labour were to be accepted the Tribunal would in effect not be applying the formula.
Similar observations are to be found in several other decisions but we need not add them here.
The question is whether the concept of notional tax liability which was adopted so long was laid aside by Parliament when it enacted section 6(c) and section 7 and replaced the concept of actual tax liability.
To answer this question we must examine the scheme of the Act and Sch.
Broadly speaking, it can be safely said that Parliament has retained the main outlines of the Full Bench Formula in the Act.
It maintained, for instance, the accounting year as the unit, the principle that the employer, and where it happens to be a company, the company and its shareholders and labour as are each entitled as contributories to the profits to a share therein, the deductions of certain prior charges, the concept of gross profits etc.
which were the features of the Formula.
The principal change it introduced was the statutory formula of minimum and maximum bonus and the corollary flowing therefrom of "set on" and "set off" and the doing away of rehabilitation as a prior charge against which labour had clamored long.
But do these changes envisage the doing away of the concept of notional tax liability which the Tribunals used to work out and substituting actual tax liability by first working out the taxable income of, the employer under the Income Tax Act and other Acts ? The answer of course, must be found from the provisions of the Act and not from what used to be done before its enactment.
Sections 4, 5, 6 and 7 together with the Schedules deal with computation of gross profits and available surplus out of which 67% in cases falling under el.
(a) of sec.
2(4) and 60% in cases falling under cl.
(b) of that sub section would be the allocable surplus.
Under Sch.
II, which applies to establishments which are not banking companies, the starting point is the net profit (1) 773 shown by the employer in his P & L account.
The reason for doing so seems to be that the Tribunal is not expected ordinarily to reopen the P & L account, verify the accounts from which it is worked out or find.
out for itself 'the true net.
profit.
Parliament was award that Tribunals which would adjudicate disputes under the Act would be the least efficacious for such a purpose, apart from the fact that such enquiries would be prolonged and bitter enquiries.
That is why section 23 was enacted to raise a presumption about the correctness of 'the P & L account and balance sheets of companies duly certified by auditors qualified under section 226 of the .
Since the P & L account would have taken into account, besides expenditure allowable under the Income Tax Act, bonus payable to labour, provisions for tax, development rebate or development allowance and reserves, Item 2 of Sch.
II requires these amounts to be added back.
Similarly, the amounts set out in Items 3 & 4 in Sch.
II are also to be added back.
Item 5 provides for certain deductions ' such as capital receipts, capital profits, profit and receipts relating to business outside India, income of foreign concerns from investments outside India etc.
It is clear from the nature of these deductible items that they are items in which generally labour would not have made any contribution.
Having thus arrived at the gross profits, section 6 provides for deduction of prior charges Set out in cls.
(a), (b), (c) and (d).
Clause (a) allows the deduction of depreciation admissible under section 32 ( 1 ) of the Income Tax Act or a similar provision under other Acts charging direct taxes, but not depreciation unabsorbed in any earlier previous year by reason of there being no profits or gains chargeable for that year or of such profits or gains being less than the allowance allowable under section 32(2) of the Income Tax Act.
The result is that while making his P & L account the employer would deduct both 'the depreciation allowable under section 32(1) as.
also the depreciation unabsorbed during the earlier years.
The whole of Such depreciation, however, has to be added back under item 2(b)of Sch.
II while computing the gross profits.
Notwithstanding such adding back of depreciation allowable under both sub secs.
1 & 2 of section 32 of the Income Tax Act, the depreciation deductible under s.6(a) of the Act is the one allowed under section 32(1), that is, the depreciation relating to the accounting year only and not the depreciation unabsorbed in any earlier accounting year.
Similar is the position regarding bonus paid during the accounting year but which relates to the earlier accounting years.
Even in the case of an employer keeping his accounts on mercantile basis, he would not get a deduction of bonus though payable but not actually paid during the accounting year.
He would, however, be entitled to deduct such bonus from his taxable profits and gains as expenditure incurred wholly for the business.
Under Sch.
II Item 3(a) bonus, even though paid during the accounting year, has to be 774 added back if it is deducted in the P & L account.
The net profit in the P & L account: would thus not be the same as the available surplus worked out under 'the Act, The same is the position of losses and expenditure relating to a foreign business which though allowable under ' the Income Tax Act have to be added back to the net profit shown in the P & L account.
As already stated deductions permissible under Sch.
11 are those items in which it can be said that labour could have made no contribution in earning them So far as development rebate is concerned, section 6(b) allows the whole of such rebate allowable under the Income 'Fax Act and, therefore, there would be no difficulty in working out the development rebate under this head and the Income Tax Act.
Coming now to cl.
(c) of section 6, is it the actual taxable income, the direct tax on which is a prior charge, which is to be worked out, or the tax ' on the estimated balance of gross profits after deducting depreciation and development charges but without deducting the bonus payable during the year ? In other words, when the Tribunal. reaches the stage ' of cl. (c), does it have to assess the taxable income in accordance with the various provisions of the Income Tax Act just as an Income Tax Officer would do and assess the liability of income tax on such taxable income according to the rates applicable during the particular accounting year, or should it compute the balance of gross profits and as stated above and apply the said rates and estimate the amount of direct tax and deduct them from the remain gross profits? Bonus being payable within eight months after the close of the accounting year in cases.where there is no dispute pending before an authority under section ,22 of the Act as provided by section 19, it is hardly possible, except in rare cases, that assessment under the Income Tax Act and other such Acts would be completed by the time bonus has to be paid; Therefore, the Tribunal would not have before it the taxable income assessed by the Income Tax and other such officers.
If the Unions ' contention were to be right, there would be two or more parallel authorities working under this Act and the Income Tax Act and other such Acts who would have to assess taxable income and the tax payable thereon, before all of whom the employer would have to prove his taxable income.
Prima facie, it would seem that the Bonus Act could not intend an enquiry into the actual taxable income worked out under all the elaborate provisions relating to deductions, allowances, reliefs, rebates etc.
provided by the Income Tax Act and other such Acts.
This is particularly so as in each bonus dispute the Tribunal not equipped with the detailed knowledge of all such Acts would have to undertake an.
enquiry into the various deductions, rebates.
reliefs etc.
claimable by the employer under those Acts.
The fact that payment of bonus cannot brooke delay without causing 775 hardship to labour would seem to militate against the possibility of such prolonged enquiries.
The key to the words in section 6(c), namely, "is liable to pay" emphasised on behalf of the unions and some of the interveners lies in the opening words "subject to the provisions of section 7" in cl.
These words are used, whether the tax liability is to be calculated on actual taxable income or on the notional amount worked out under sections 4 and 6 and Sch.
II, because the direct taxes payable by the employer are to be calculated at the rates applicable during that year as provided by section 7.
That both such amounts cannot be the same is clear because section 7 in express terms prohibits taking into account unabsorbed losses and arrears of depreciation allowable under section 32(2), the exemption allowed under section 84 and the deduction allowed under section 101(1) of the Income Tax Act.
Similarly, where an assessee is a religious or charitable institution and its income either wholly or partially, as the case may be, is exempt under the Income Tax Act, such an employer to whom section 32 of the Act does not apply is treated as a company in which the public are substantially interested and its income is to be assessed accordingly by the Tribunal and compute its liability for direct taxes.
Clause (c) of section 7 does away for the purposes of sections 6 and 7, the distinction between the liability of an individual and a Hindu Undivided Family under the Income Tax Act and provides that the income derived by such a Hindu Undivided Family is to be treated as the income of that employer as an individual.
Likewise, where profits and gains of an employer include profits from export, a rebate allowed under the Income Tax Act on such profits is not to be taken into account while working out the tax.
liability under section 6(c).
Also, the rebate allowed under any of the Acts levying direct taxes on sums spent on development of an industry is also not to be taken into account while computing the tax liability.
It was, however, argued that the provisions of section 7 lay down the only departure from the Income Tax Act and that except for that departure the Tribunal must assess the actual taxable income and arrive at the tax liability thereon at rates prevailing during the accounting year in question.
In our view this submission is not correct.
What section 7 really means is that the Tribunal has to compute the direct taxes at the rates at which the income, gains and profits of the employer are taxed under the Income Tax Act and other such Acts during the accounting year in question.
That is the reason why section 6(c) has the words "is liable for" and the words "income, gains and profits".
These words do.
not, however, mean that the Tribunal while computing direct taxes as a prior charge has to assess the actual taxable income and the taxes thereon.
How can the Tribunal arrive at the amount of bonus to be paid to labour without first estimating the amount of taxes and deducting it from the gross profits and thus ascertaining the 776 available surplus ? If it were to reverse the process and first deduct bonus and ascertain the tax amount, it would have to do so on a somewhat ad hoc figure thus bringing about the same result deprecated by this Court in decisions referred to above.
This and the other difficulties already pointed out must deal to the result that the Tribunal must estimate the amount of direct taxes on the balance of gross profits as worked out under sections 4 & 6, but without deducting the bonus, then work out the quantum of taxes thereon at rates applicable during that year to the income, gains and profits of the employer and after deducting the amount of taxes so worked out arrive at the available surplus.
Section 6(c) being subject to section 7 the computation has to be done without taking into account the items specified in section 7(a) and in the manner prescribed by the remaining clauses of that section.
This interpretation is commendable because: (1 ) it is consistent with the words "is liable to pay" in section 6(c), (2) it is in harmony with the provisions of sections 4 and 6 and Sch.
11, and (3) it is consistent with the intention of Parliament apparent from the scheme of computation of available surplus in the Act.
The Act recognises the principle laid down in the Full Bench Formula that both labour and capital are entitled to a share in the profits.
That is why 40 p.o. of the available surplus is left to the capital and interest is allowed to the employer on paid up and working capitals while working out the gross profits.
Parliament besides was or at any rate is presumed to have been aware that depreciation allowed under the Income Tax Act would not be sufficient for rehabilitation purposes.
It did away with rehabilitation as a prior charge partly became there were complaints that it was being ill used, but partly also because it knew that the rebate in Income Tax Act on bonus paid would go to the employer with which he could recoup the depreciation which would be larger than the one allowed under section 32 of the Income Tax Act.
In our view it was for that reason that it did not lay down that bonus is to be deducted before computing the amount on which direct taxes are to be calculated under section 6(c).
If Parliament intended to make a departure from the rule laid down by courts and tribunals that the bonus amount should be calculated after provision for tax was made and not before, we would have.
expected an express provision to that effect either in the Act or in the Schedules. 'In our view the contention urged by the Company that the tax liability is to be worked out by first working out the gross profits and deducting therefrom the prior charges under section 6 but not the bonus payable to the employees is right.
In the result, the appellant Company succeeds on the questions of development rebate and the provision for gratuity amount.
Its appeal on those questions is therefore allowed and to that extent the award is set aside.
As regards the question of depreciation 777 amount the Tribunal will ascertain the amount afresh after giving the parties opportunity to lead such evidence as they desire and taking that amount and the amounts of development rebate and ' of the provision for gratuity in the light of this judgment, the Tribunal will adjust it award and arrive at the quantum of bonus payable to the workmen.
Appeal by workmen is dismissed.
There will be no order as to costs.
R.K.P.S. Appeal by Company allowed in part.
Appeal by Workmen dismissed.
[/INST]The assessee was running a business of plying buses and during its previous year ending on August 16, 1959, the buses had been plied for part of the year but were sold thereafter.
The Income tax Officer assessed the difference between the sale price of the buses and their written down value to tax as profit under the second proviso to section 10(2) (vii).
In appeal, the Appellate Assistant Commissioner rejected the assessee 's contention that the business had been transferred as a whole and therefore the profit in question could not be taxed.
The Tribunal also dismissed an appeal taking the view that the buses had been plied by the assessee for part of the previous yea.r and the profit on the sale of these buses was taxable under the said provision.
However, the High Court, upon a reference, held that the amount in question was not assessable as profit under section 10(2)(vii) on the assumption that the whole of the bus service business had been wound up during the relevant period.
On appeal to this Court.
HELD: allowing the appeal: Even on the assumption that the sale of the buses was a closing down or a realization sale it would nonetheless be taxable since the sale was made after the amendment of the second proviso.
section 10(2)(vii) by Act 67 of 1949.
[533 F G] According to the law laid down by this Court the view of the High Court would have been sustainable if the sale in the present case had been effected during the assessment year prior to the amendment of the proviso by Act 67 of 1949.
The critical words which were inserted by that proviso namely, "whether during the continuance of the business or after the cessation thereof", must be given their proper meaning.
It is quite plain that if the building, machinery or plant is sold during the continuance of the business or after the business ceases, the sale proceeds would be liable to tax in accordance with the proviso.
When the legislature clearly provided that the proviso would apply even if the sale was made, after the cessation of the business, it is difficult to conceive that it was intended to exclude from the ambit of the proviso a sale made for the purpose of closing down the business or effecting its cessation.
[535 F H] Commissioner of Income tax, Madras Iv.
Express Newspapers Ltd., Madras, , 195; Commissioner of Income tax, Kerala vs West Coast Chemicals and Industries Ltd. ; Commissioner of Income tax, Kerala vs
R.R. Ramakrishna Pillai, and The Liquidators of Pursa Limited vs Commissioner of Income tax, Bihar; , ; distinguished.
Commissioner of Income tax vs Ajax Products Ltd., ; ; referred LI 3Sup.
CI/68 3 532
</s>
|
<s>[INST] Summarize the judgementAppeal No. 105 of 1954.
Appeal by special leave from the judgment and order dated November 6, 1952, of the Labour Appellate Tribunal, Calcutta in Appeal No. Cal 3 of 1952 773 arising out of the award dated September 25, 1951, of the Court of District Judge, Industrial Tribunal, Calcutta in Case No. VIII 23 of 1951.
section C. Isaacs, A. K. Datt and Sukumar Ghose, for the appellants.
M. C. Setalvad, Attorney General for India, D. B. Das and section N. Mukherji, for the respondent.
B. Sen and P. k. Bose, for Intervener (State of West Bengal).
October 11.
The Judgment of the Court was delivered by GOVINDA MENON J.
This appeal is by special leave against the decision of the Labour Appellate Tribunal of India, Calcutta, which modified the award, passed by the Industrial Tribunal, Calcutta, in the matter of a dispute referred to it by the Government of West Bengal, for adjudication with regard to the rates of dearness allowance for clerks and Depot cashiers, employed by the Calcutta Tramway 's Coy.
Ltd., numbering about 600, out of a total of 10,000 workmen.
Disputes having arisen between the workmen of the Calcutta Tramways Coy, Ltd. (which may hereafter be called 'The Company ') on the one hand, and the employers on the other, relating to the dearness allowance payable to the workmen, there were two previous awards, one dated May 16, 1947, by Sri section N. Guha Roy, and the other dated October 27, 1948, by Sri P. K. Sircar.
Both of these awards related to all the employees of the Company and not to the clerks and Depot cashiers alone.
Subsequently a reference was made by the West Bengal Government on June 13, 1951, concerning a dispute relating to the dearness allowance of the workmen of the Company, excluding clerks and Depot cashiers.
There was an award and an appeal, and in that appeal the Appel.
late Tribunal increased the dearness allowance by Rs. 7/8/ for workmen in the pay ranges below Rs. 50 and up to the pay range of Rs. 250 and by a flat rate 774 of Rs. 5 in the higher pay ranges taking the cost of living index of the workmen class at 370 points.
In the present award, which relates to the clerks and the Depot cashiers alone, the Industrial Tribunal gave Rs. 47/8/ as dearness allowance for a pay range of Rs. 51 to Rs. 100 and provided for a progressive increase of Rs. 5 for each slab of Rs. 50 in the pay range.
The Appellate Tribunalincreasedthe amounts so awarded by Rs. 2/8/ more than what was granted to the other workmen of the Company.
The cost of living index for the middle class families had been fixed by an investigating body of the Bengal Chamber of Commerce during the relevant year at 382 points, whereas the index in the case of working class was fixed at 370 points.
The increased amount awarded for the various pay ranges and shown in the decision of the Labour Appellate Tribunal which need not be repeated again, was founded on these cost of living indices though the amount was not the same as recommended by the Bengal Chamber of Commerce.
Before the Labour Appellate Tribunal, as well as the Industrial Tribunal, the claim put forward on behalf of the clerks and Depot cashiers was that the dearness allowance should be on the same rates as decided upon by the Bengal Chamber of Commerce of which the company is a member and no difference should have been made between the dearness allow ance recommended by the Bengal Chamber of Commerce and that to be awarded by the Industrial Tribunal.
In fact, what was urged was that the recommendation of the Bengal Chamber of Commerce ought to have been accepted in its entirety for the reason not only that the Company is a first class member of the Chamber but also that the class of persons, namely the middle classes for whom the recommendation was intended, includes clerks and Depot cashiers of the Company as well, and the same having been accepted ,by the Mercantile Tribunal which dealt with the dearness allowance payable to the employees of the mercantile firms in Calcutta, the Industrial Tribunal, as well as the, Labour Appellate Tribunal, should have 775 followed the same.
The learned Judges of the Appellate Tribunal held that those recommendations were made to the mercantile firms where the workmen consist practically of the clerical and subordinate staff as opposed to Tramways Company where the large percentage of workmen belong to other categories, the clerks and Depot cashiers being only a small minority, though they found that the cost of living index found by the Bengal Chamber of Commerce should be accepted as the criterion for awarding the increased dearness allowance in the case of the employees of the Company as well.
On behalf of the appellants it is urged before us that a different mode of treatment than the one recommended by the Bengal Chamber of Commerce should not have been resorted to in the case of the appellants, for the reason that those recommendations are intrinsically reasonable, considering the uniformity of life and modes of habit of the middle classes to which the clerks and Depot cashiers belong.
The, respondent Company being a member of the Bengal Chamber of Commerce should, instead of ignoring the recommendation have acted upon it as a mandate, so that its action as a member should not be inconsistent with that followed by others especially since there have been no valid reasons alleged for the non acceptance of the recommendation.
It is further urged that there is no acceptable defence put forward that the abovementioned recommendation will not apply to institutions having a mixed staff as the Company in question.
On the other hand, what is stated in the written statement of the Company is that according to the previous award it had been paying a uniform sliding scale of dearness allowance for all categories of workmen as detailed in Paragraph 6(b).
It is, therefore, contended that what the Industrial as well as the Appellate Tribunal should have done was to have evolved a principle to fix the dearness allowance in relation to the ' basic salaries and the cost of living index, as that alone would satisfy the recom mendations of the Bengal Chamber of Commerce.
776 ,We have, therefore, to see whether in following the course now adopted by the Tribunals below they have ignored any legal principle or acted in violation of any statute.
There can be no doubt whatever that if the scheme adumbrated by the Bengal Chamber of Commerce is adopted in the case of clerks and Depot cashiers, they would get amounts far in excess and out of all proportion to what were awarded to the other workmen whose appeal had already been disposed of by the Appellate Tribunal though it has to be recognized that the cost of living index in the case of the appellants has to be considered to be more than the index of workmen whose avocations are the result of physical labour rather than of mental faculties.
In short, the clerks and Depot cashiers should be considered as the white collared fraternity.
In these circumstances, we have to find out whether the procedure followed by the Labour Appellate Tribunal, namely leaving out 20 points un neutralised and allowing Rs. 5 per 20 points rise in the living cost index but taking into consideration a higher living cost index of 382 in the case of the appellants as compared with the average index of the workmen of 370, is a justifiable method to be adopted.
It is difficult to hold that the middle classes in this country can be said to form a separate stratum of society even in a city like Calcutta having the same mode of life, the same necessities, uniform requirements and comforts.
There are different grades even among the middle classes and it is unwise to predicate the same degrees of comforts and necessities for everyone who is said to belong to the middle classes.
Such being the case, to say that the clerks in the mercantile firms can be considered equal in all respects to the 600 clerks and Depot cashiers of the Company, is an argument which cannot be accepted as sound.
The Labour Appellate Tribunal has not completely ignored the recommendations of the Bengal Chamber of Commerce, for it is seen that in raising the amount awarded by the Industrial 777 Tribunal the Appellate Tribunal has based its conclusion on the higher cost of living index in the case of middle class employees.
Such being the case, the point for consideration is whether any question of principle is involved, so that this court might interfere with the conclusions arrived at by the Labour Appellate Tribunal.
Wide and undefinable with exactitude as the powers of the Court are (see Dhakeswari Cotton Mills Ltd. vs Commissioner of Income Tax, West Bengal(1)), it is now well settled that generally the necessary pre requisites for this court 's interference to set right decisions arrived at by Tribunals whose conclusions on questions of fact are final can be classified under the following categories, namely, (1) where ' the Tribunal acts in excess of the jurisdiction conferred upon it under the statute or regulation creating it or where it ostensibly fails to exercise a patent jurisdiction; (ii) where there is an apparent error on the face of the decision and (iii) where the Tribunal has erroneously applied well accepted principles of jurisprudence.
It is only when errors of this nature exist, that interference is called for.
In the present case the appellants have not been able to show that there is any deviation from those principles.
If the Tribunal below had failed to resort to a basic principle, then something might have been said but what has been done is, that in computing the dearness allowance it has considered various methods and adopted one of them.
That being the case, it is ' difficult to say that there is any question of principle at all.
The report of the Central Pay Commission at page 46, in Paragraph 71, made the following recommendation: "Without adopting such a complicated procedure, we think it sufficient to provide by slabs for persons on different levels of pay, as shown in the accompanying table which also provides for diminishing rates of dearness allowance as the cost of living index falls, taking the stages by 20 points at a time".
(1) ; , 949.
778 It refrained from recommending the neutralisation of the entire higher cost of living by means of dearness allowance.
The report of the Committee on Fair Wages appointed by the Government of India in Chapter IV, dealing with Wage Adjustments considered in paragraph 43 the various modes and methods of granting relief to meet the burden of increased cost Of living and came to the conclusion that there is no practice of uniformity in the extent of compensation given to employees to meet the increased cost of living.
It observed as follows: "The Pay Commission has accepted, the principle that the lowest paid employee should be reimbursed to the full extent of the rise in the cost of living and that, higher categories of employees should receive a diminishing but graduated scale of dearness allowance.
The Pay Commission has rejected the principal of a flat rate for all categories of employees, irrespective of their basic salaries".
Finally it came to the conclusion "that for the lowest categories of employees the target should obviously be compensation to the extent of 100 per cent.
of the increase in the cost of living.
For categories above the lowest we agree that the same consideration will not apply.
A flat rate equal to the rate allowed to the leastskilled worker is not likely to satisfy higher categories".
In the analysis regarding the Industrial Awards, issued by the Government of India, Ministry of Labour, the question of dearness allowance is considered somewhat elaborately.
At page 33 there is a discussion regarding the linking of dearness allowance to the cost of index numbers and as to whether a flat rate of dearness allowance irrespective of the income group should be allowed or not.
They further considered the linking of dearness allowance to the cost of living index numbers on the scale of income groups, but at rates diminishing with the income received.
A perusal of the fairly elaborate discussion in Chapter 779 III shows that there cannot be a hard and fast rule applicable to all kinds of employees.
Very much will depend upon the conditions of labour, the nature of the locality and the mode of living.
In Buckingham and Carnatic Company Ltd., Madras vs Workers of the Company(1) the Tribunal considered the question of neutralisation of the rise of the cost of living by the grant of dearness allowance and was of the opinion that cent per cent neutralisation cannot be allowed, as it would lead to a vicious circle and add fillip to the inflatory spiral.
It further held that there was no reason why the Industrial worker should not make sacrifices line all other citizens.
We can now take it as settled that in matters of the grant of dearness allowance except tothe very lowest class of manual labourers whose income is just ' sufficient to keep body and soul together, it is impolitic and unwise to neutralise the entire rise in the cost of living by dearness allowance.
More so in the case of the middle classes.
The criterion to be adopted in the fixation of dearness allowance is also considered in Mahomad Rai Akbarali Khan vs The Associated Cement Companies Limited(2) where similar principles are discussed.
On behalf of the appellants our attention was invited to certain observations contained in The Millowners ' Association, Bombay vs The Rashtriya Mill Mazdoor Sangh(3), but we do not think that any different principle is enunciated there at all.
Mr. Isaacs, the learned counsel for the appellants, laid great stress on the decision in Workmen of the Firestone Tyre and Rubber Company of India Ltd., Bombay vs Firestone Tyre and Rubber Company of India Ltd., Bomba(4) where the Tribunal expressed the opinion that dearness allowance is intended to neutralise rise in the cost of living and as there is a well recognised difference between the clerical staff and other workmen in their cost of living, the latter are not entitled.
(1) , 519, 520.
(2) (3) (4) 101 780 to claim the allowance on the same basis.
From this the learned counsel contends that the recommendations of the Bengal Chamber of Commerce should be accepted in toto.
In our opinion, the decision does not help the point of view put forward on behalf of ' the appellants.
In fact, the Labour Appellate Tribunal has made a distinction between the physical labourers and the clerks and Depot cashiers in whose work it is not alone the physical exertion that is essential but some kind of mental and brain work as well and accordingly the higher cost of living index taken into account.
In such circumstances, it seems to us that the Labour Appellate Tribunal has, after considering the various points of view, come to the correct conclusion in awarding the dearness allowance it did.
There is no question of law or principle involved and the appeal has to be dismissed with costs of the Calcutta Tramways Coy.
Ltd. The State of West Bengal, which has intervened during the appeal, will bear its own costs.
[/INST]It is well settled that the decisions of a Tribunal on questions of fact are final and that the Supreme Court would interfere only in cases where (1) the Tribunal acts in excess of the jurisdiction conferred upon it under the statute or regulation creating it or where it ostensibly fails to exercise a patent jurisdiction; (2) there is an error apparent on the face of the decision; (3) the Tribunal has erroneously applied well accepted principles of jurisprudence.
The Bengal Chamber of Commerce of which the respondent Company was a member, had made an investigation into the cost of living index for the middle class families and, fixed the dearness allowance payable to the employees of the mercantile firms in Calcutta.
Before the Industrial Tribunal as well as the Labour Appellate Tribunal the claim was put forward on behalf of the appellants (the clerks of the respondent Company) that the dearness allowance for them should be at the same rates as those decided upon by the Bengal Chamber of Commerce in respect of the middle classes to which the appellants belonged and they contended that the procedure adopted by the Labour, Appellate Tribunal leaving out 20 points of the living cost index un neutralised was not justifiable.
Held, that in matters of the grant of dearness allowance there cannot be a hard and fast rule applicable to all kinds of employees and except in the very lowest class of manual labourers it is not proper to neutralise the entire rise in the cost of living by dearness allowance.
There are different grades among the middle classes and the appellants cannot claim to have the same rates of dearness allowance as those fixed for the clerks of the mercantile firms by the Bengal Chamber of Commerce.
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<s>[INST] Summarize the judgementCivil Appeal No. 1998 of 1969.
Appeal by Special Leave from the Judgment and Decree dated 3 10 1968 of the Punjab and Haryana High Court in L.P.A. No. 348/64.
V. C. Mahajan, Mrs. Urmila Kapoor and Mrs. Shobha Dikshit for the Appellants.
Hardev Singh for the Respondent.
465 The Judgment of the Court was delivered by SARKARIA, J.
This appeal by special leave is directed against a judgment, dated October 3, 1968, of the High Court of Punjab and Haryana.
The facts leading to this appeal are that the appellants are partners of a firm, Bharat Industries, Chheharta.
By a Notification, dated May 15, 1946, the Chheharta Municipal Committee levied a profession tax under Section 61(1)(b) of the Punjab Municipal Act, 1911.
Initially, the tax was Rs. 15/ per annum and was levied on all the partners of the said firm.
By a Notification, dated July 4, 1958, the annual tax for trade, profession or calling for the owner of a factory registered under the Indian Factories Act, was raised to Rs. 200/ per annum and each of the six partners of the said firm were assessed to annual tax of Rs. 200/ by the Municipal Committee.
On October 30, 1960, the appellants filed a suit for permanent injunction restraining the defendant Committee from realising the profession tax demanded by it per letters Nos.
15 to 20, dated May 31, 1960, amounting to Rs. 1,200/ .
The appellants challenged the validity of the assessment contending that construed in the light of the definition given in section 2(40) of the Punjab General Clauses Act, the term "person" occurring in section 6(1)(b) of the Punjab Municipal Act, 1911, includes a 'firm ' and since the trade carried on by the 'firm ' is one, the tax could be levied only on the firm, and not on the partners individually.
On these premises, it was pleaded that the Municipal Committee in levying the tax on the individual partners had exceeded its statutory powers under Section 61(1)(b) of the Municipal Act.
The trial court dismissed the suit.
On appeal by the plaintiffs, the Additional District Judge, Amritsar, reversed the judgment of the trial court and decreed the suit.
The Municipal Committee carried a further appeal to the High Court.
The learned Single Judge, who heard the appeal, affirmed the judgment and decree of the first appellate court, on the reasoning which may be summed up as under: The term "person" in Section 61(1)(b) of the Municipal Act, interpreted in the light of the definition given in Section 2(40) of the Punjab General Clauses Act, includes a 'partnership '.
Under clause (b) of Section 61(1) of the Municipal Act, the basis on which the liability to pay tax arises, is the trade, profession or business; and if the 466 trade and business is one carried on by several persons collectively in partnership, then the partnership alone, and not the individual partners, are liable to pay the tax; that the liability on the partners will fall twice which is not contemplated by the scheme and language of the Municipal Act, even though all the partners are jointly and severally liable to any tax for the partnership business.
In support of his conclusion that the tax was on trade and not on persons, the learned Judge by way of analogy, referred to clauses (a), (c), (d), (e) and (f) of sub Section (1).
He also referred to two Madras decisions in The Municipal Commissioners of Nagapatam vs Sadaya Pillay(1) and Davies vs President of the Madras Municipal Commission(2): and found himself in entire agreement with the reasoning of the learned Judges in those cases.
Aggrieved, the Municipal Committee preferred a Letters Patent Appeal.
The Appellate Bench of the High Court held that to import the definition of the term "person" occuring in Section 2(40) of the Punjab General Clauses Act into Section 61(1) (b) of the Municipal Act, will be repugnant to the subject.
In the opinion of the Bench, under the scheme of the statute in question, the tax cannot be levied on a firm or factory as such, but only on the individual owners of the factory or of the firm.
On this reasoning, the Bench reached the conclusion "that under Section 61(1) (b) of the Act, it is the individual who is to be assessed and is liable to pay the tax mentioned therein and so the assessment as well as the demand of the tax from each of the plaintiffs does not suffer from any legal infirmity.
" The Bench further held that since the Committee in imposing the tax on the appellants herein, has not acted outside the provisions of the statute, "it would, on the basis of the judgment of the Supreme Court in Firm Seth Radha Kishan (Deceased) represented by Hari Kishan & Ors.
vs Administrator Municipal Committee, Ludhiana,(3) which also dealt with the provisions of the Municipal Act, follow that the impugned assessment could only be questioned under the provisions of Sections 84 and 86 of the Act, and the jurisdiction of the Civil Court in respect of tax levied or the assessment made is excluded".
In the result, the appeal was allowed and the trial court 's decision dismissing the suit was restored.
Before us, Mr. V. K. Mahajan, learned counsel for the plaintiffs appellants, has adopted the reasons given by the learned Single Judge of the High Court.
In support of his contentions, he has relied upon the 467 aforesaid Madras decisions.
His argument is that if the interpretation placed by the Appellate Bench of the High Court is allowed to stand, it will lead to anamolous and unconstitutional results.
Mr. Mahajan concedes that the individual partners are also 'persons ' within the meaning of clause (b) of Section 61(1).
He, however, maintains that the firm, also, is a 'person ' within the contemplation of this provision and as such, liable to be taxed; that if in respect of the one trade, which is being carried on by the firm, apart from each of the individual partners, the firm, also is separately assessed to Rs. 200/ per annum, not only the incidence of the tax will fall twice, the total liability therefor will far exceed the ceiling of Rs. 250/ per annum fixed by Article 276(2) of the Constitution.
In these premises, it is contended that an interpretation of Section 61(1) (b), which may lead to unconstitutional on irrational results should be eschewed.
With regard to the question of jurisdiction it is contended that since the Municipal Committee had in the exercise of its powers clearly acted beyond its jurisdiction, the suit was maintainable in the Civil Court.
Section 61(1)(b) of the Municipal Act, so far as material for this case, reads as under: "Subject to any general or special orders which the State Government may make in this behalf, and the rules, any committee may, from time to time for the purposes of this Act, and in the manner directed by this Act, impose in the whole or any part of the municipality any of the following taxes, namely: (1) (a). . . . (i) to (iii) . . . . (b) a tax on persons practising any profession or art or carrying on any trade or calling in the municipality.
Explanation.
A person in the service or person holding an office under the State Government or the Central Government or a local or other public authority shall be deemed to be practising a profession within the meaning of this sub section.
" From a plain reading of the extracted provision, it is clear that a tax leviable under clause (b) is, in terms, a tax on "persons".
The expression "persons" undoubtedly includes natural persons.
The class of such taxable persons has been indicated by the Legislature with reference to their occupational activity.
Thus, in order to be authorised, a tax under clause (b) of Section 61(1) must satisfy two conditions: 468 First, it must be a tax on "persons".
Second such persons must be practising any profession or art or carrying on any trade or calling in the municipality.
There can be no dispute that the appellants are "persons" and, as such, satisfy the first condition.
Even the learned counsel for the appellants has candidly conceded that the individual partners are also "persons" within the meaning of the said clause (b).
Controversy thus becomes narrowed down into the issue; Whether persons collectively doing business in partnership, in the municipality, fulfil the second condition ? That is to say, do such persons "carry of any trade or calling in the municipality" within the contemplation of clause (b) ? In our opinion, for reasons that follow, the answer to this question must be in the affimative. 'Partnership ' as defined in Section 4 of the , is the relation between persons who have agreed to share the profits of a business carried on by all or any of them for the benefit of all.
The Section further makes it clear that a firm or partnership is not a legal entity separate and distinct from the partners.
Firm is only a compendious description of the individuals who compose the firm.
The crucial words in the definition of 'partnership ' are those that have been underlined.
They hold the key to the question posed above.
They show that the business is carried on by all or any of the partners.
In the instant case, admittedly, all the plaintiff appellants are carrying on the business in partnership.
All the six partners are sharing the profits and losses.
All the partners are jointly and severally responsible for the liabilities incurred or obligations incurred in the course of the business.
Each partner is considered an agent of the other.
This being the position, it is not possible to hold that each of the six partners is not carrying on a trade or calling within the purview of clause (b) of Section 61(1) of the Municipal Act.
At the most, it can be said that each of these six persons is severally as well as collectively carrying on a trade in the Municipality.
There is nothing in the language of Section 61 or the scheme of the Municipal Act which warrants the construction that persons who are carrying on a trade in association or partnership with each other cannot be individually taxed under clause (b) of Section 61(1).
On the contrary, definite indication is available in the language and the scheme of this statute that such partners can be taxed as persons in their individual capacity.
As noticed already, clause (b) makes it clear in no uncertain terms that this is a tax on 'persons. ' Its incidence falls on individuals, who belong to a class practising any profession or art; or carrying on a trade or calling in the municipality.
469 To hold that persons who are collectively carrying on a trade in the municipality cannot be taxed individually, would be to read into the statute words which are not there.
There are no words in clause (b) or elsewhere in the statute which, expressly or by necessary implication, exclude or exempt persons carrying on a trade collectively in the municipality from being taxed as individuals.
To attract liability to a tax under this clause, it is sufficient that the person concerned is carrying on a trade in the municipality, irrespective of whether such trade is being carried on by him individually or in partnership with others.
Thus, both the conditions necessary for levying a tax under clause (b) of subsection (1) of Section 61 of the Municipal Act existed in this case.
The appellants are "persons" and they are carrying on a trade in Chheharata Municipality.
In the view we take, we do not think it necessary to go further into the question, whether the definition of 'person ' given in Section 2(40) of the Punjab General Clauses Act, can be imported into the statute under consideration, so as to include a contractual firm, also, within the purview of the expression 'persons ' used in clause (b) of Section 61(1).
Indeed, the entire effort to import the definition of 'person ' given in the General Clauses Act, into Section 61(1)(b) of the Municipal Act, is directed to find a foundation for the argument, that the construction adopted by the High Court could lead to double taxation and even unconstitutional results.
But in the instant case, nothing of this kind has happened.
The firm has not been assessed.
No question of double taxation or exceeding the Constitutional ceiling of Rs. 250/ fixed by Article 276(2) of the Constitution, arises on the facts of the present case.
The arguments advanced on behalf of the appellants on this aspect of the matter are merely hypothetical, and speculative.
This takes us to the second question, whether the Civil Court had jurisdiction to hear and determine the suit.
Section 84(1) of the Punjab Municipal Act provides that "an appeal against the assessment or levy of any. tax under this Act, shall lie to the Deputy Commissioner or to such other officer as may be empowered by the State Government in this behalf".
Then, there is a proviso to this sub section which says that when the Deputy Commissioner or such other officer, as aforesaid, is or was, when the tax was imposed, a member of the Committee, the appeal shall lie to the Commissioner of the Division.
Sub section (2) is important.
It provides: "84(2).
If, on the hearing of an appeal under the section, any question as to the liability to, or the principle of assessment of, a tax arises, on which the officer hearing the appeal entertains reasonable dobut, he may, either of his own 470 motion or on the application of any person interested, draw up a statement of the facts of the case and the point on which doubt is entertained, and refer the statement with his own opinion on the point for the decision of the High Court.
" Section 86 mandates that "no objection shall be taken to any valuation or assessment, nor shall the liability of any person to be assessed or taxed be questioned, in any other manner or by any other authority than is provided in this Act.
" From a conjoint reading of sections 84 and 86, it is plain that the Municipal Act, gives a special and particular remedy for the person aggrieved by an assessment of tax under this Act, irrespective of whether the grievance relates to the rate or quantum of tax or the principle of assessment.
The Act further provides a particular forum and a specific mode of having this remedy which analogous to that provided in Section 66 (2) of the Indian Income tax Act, 1922.
Section 86 forbids in clear terms the person aggrieved by an assessment from seeking his remedy in any other forum or in any other manner than that provided in the Municipal Act.
It is well recognised that where a Revenue Statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all other forums and modes of seeking it are excluded.
Construed in the light of this principle, it is clear that sections 84 and 86 of the Municipal Act bar, by inevitable implication" the jurisdiction of the Civil Court where the grievance of the party relates to an assessment or the principle of assessment under this Act.
In the view we take, we are fortified by the decision of this Court in Firm Seth Radha Kishan vs Administrator, Municipal Committee, Ludhiana, (supra) wherein sections 84 and 86 of this very Punjab Municipal Act, 1911 came up for consideration.
Therein, the Municipal Committee, Ludhiana, imposed a terminal tax on Sambhar salt and assessed the appellant, therein, to a sum of Rs. 5,893/ towards that tax at the rate of Rs. 10/ per maund under item 69 of the Government Notification by which the terminal tax was imposed.
The assessee filed a suit against the Municipal Committee in the Civil Court, contending that Sambhar salt ought to have been assessed at the rate of 3 pies per maund under item 68, that he had been illegally assessed under item 69 at the higher rate, and claimed refund of the amount paid by him, with interest.
The Committee, inter alia, contended that Sambhar salt was not common salt, and the Civil Court had no jurisdiction to entertain the suit.
The trial court held that Sambhar salt was common salt within the meaning of item 68 of the Schedule, that 471 the imposition of tax on it under item 69 of the Schedule was illegal, and, therefore, the Civil Court had jurisdiction to hear and determine the suit by virtue of section 9 of the Code of Civil Procedure.
On appeal, the High Court held that the Civil Court had no jurisdiction, and dismissed the suit.
The assessee came in appeal to this Court by certificate granted by the High Court, and contended that since the impugned levy was not made under the Municipal Act but in derogation thereof, the Civil Court had jurisdiction to entertain and determine the suit.
Delivering the judgment of the Court, Subba Rao, J. (as he then was) repelled this contention, observing that the rate of the tax to be levied depended upon the character of the salt, and it was not possible to say that in ascertaining this fact the authorities concerned travelled outside the provisions of the Municipal Act, even if they wrongly applied item 69 of the schedule; that the mistake in applying the wrong item of the Schedule to the tax could be corrected only in the manner prescribed by the Act, and the aggrieved person cannot file a suit in the Civil Court in that regard, the Civil Court 's jurisdiction having been excluded by the provisions of Sections 84 and 86 of the Act.
The Court distinguished that class of cases where the Municipal Committee in levying a tax or committing an Act, clearly acts outside or in abuse of its powers under the Municipal Act, and explained that it is only in such cases, the bar to the jurisdiction of the Civil Court would not apply.
Can the case before us be said to belong to that class of cases where the Municipal Committee in levying a Tax acts beyond or in abuse of its powers under the Act ? The answer to this question must be in the negative.
By no stretch of imagination, can it be said in the facts and circumstances of the case, that in assessing the appellants, individually, and not collectively, to the tax in question, the Municipal Committee abused its powers under the Act.
We have already discussed and held that in levying this tax, the Municipal Committee did not travel beyond or act contrary to the provisions of Section 61(1)(b) of the Act.
In short, the present case is one where the Municipal Committee acted "under the Act".
It follows, therefore, that the Civil Court 's jurisdiction to entertain and decide the suit was barred, even if the dispute raised therein related to the principle of assessment to be followed.
For the foregoing reasons, the appeal fails and is dismissed with costs.
V.D.K. Appeal dismissed.
[/INST]The appellant was a manufacturer of a preparation called Para Excellent and Para Asli The outer label of the package describe the contents as "as sweet as saccharin".
Under the directions for use it was mentioned on the label that the preparation was para saccharin.
The appellant was prosecuted under s.2(ix)(a) and (g) of the for misbranding the goods and for selling it as saccharin.
While the trial court convicted and sentenced the appellant to imprisonment and a fine on the ground that though a case of misbranding under section 2(ix) (a) and (g) had not been made out, it was a case of misbranding contemplated by section 2(ix) (k), the High Court, in revision, enhanced the sentence and fine under sections 7 and 16 read with section 2(ix)(a) and (g) of the Act.
On behalf of the prosecution it was contended in the appellant 's appeal to this Court that the use of the word saccharin gave the impression that the preparation was saccharin or something akin to it and it was, therefore, a case of misbranding punishable under the Act.
Allowing the appeal.
^ HELD :1.
There is nothing on the facts of the case to show that the appellant in any way tried to give an impression to the purchasers that either saccharin or some preparation of the type of saccharin was being sold so as to amount to misbranding as contemplated by section 2(iv)(a) and (g) of the Act.
Nor was there an attempt to sell the preparation as saccharin or some kind of saccharin.
When the label described that the preparation was as sweet as saccharin it merely laid emphasis on the sweetness of the preparation when compared to the sweetness of the saccharin.
Similarly when the label described the preparation was not as bitter as saccharin it was intended to convey that it was neither something like saccharin nor saccharin itself in any form or of any type.
[553 C D] 2.
Nor again was there any evidence of intention on the part of the appellant to sell a preparation which resembles saccharin in any respect.
The words "as sweet as saccarin" were merely meant to convey one of the qualities of the preparation itself and not the quality of saccharin.
That by itself would not attract the provisions of section 2(ix)(a) of the Act.
[554 B] 3.
The use of the word para saccharin appears to be a mistake.
In the Hindi portion of the directions contained in the label the words "para Saccharin" were not used.
Secondly the word "para saccharin" would not indicate that 552 the preparation sold was saccharin in any form or of any kind.
It was just a way of describing the contents because the preparation was "as sweet as saccharin. ' The manufacturer wanted to convey that the preparation wasa also much sweeter than sugar and could be used for preparing soda water.
[554 C D]
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<s>[INST] Summarize the judgementition No. 3053 of 1980.
Under article 32 of the Constitution of India.
Dr. L.M. Singhvi, S.K Sinha, S.K Verma, A.M. Singhvi and Laxmi Kant Pandey for the Appellant.
D. Goburdhan for the Respondent.
The Judgment of the Court was delivered by DESAI, J.
A pensioner since 16 years is knocking at the doors of the court of justice and the executive in search of his hard earned pension and is being rebuffed by those who would meet the same fate by the passage of time and yet with his meagre resources, he has been dragged to the apex court for the second time after a lapse of 12 years during which abominably long period the mandamus of this Court has been treated as a scrap of paper.
What a pity, and what helplessness ? The facts relevant to the disposal or this petition under article 32 of the Constitution are set out in details in Deokinandan Prasad vs State of Bihar & Ors (1) and therefore, need not be recapitulated here.
A Constitution Bench presided over by the then Chief Justice Mr. Sikri issued a mandamus in the writ petition filed by the present petitioner which reads as under: "The order dated August 5, 1966 declaring under r. 76 of the Service Code that the petitioner has ceased to be in government employ is set aside and quashed.
The order dated June 12 1968 stating that under r. 46 of the Pension Rules, the Department is unable to grant the petitioner pension is also set aside and quashed.
As the petitioner himself claims that he has been retired from service on superannuation, a writ of mandamus will be issued to the respondents directing them to consider the claim of the petitioner for payment of pension according to law.
" 923 The opinion of the Court was rendered on May 4, 1971 and since then petitioner is being pushed from pillar to post by various departments of the State of Bihar ultimately compelling him to knock at the door of this Court.
It may be mentioned in passing that the petitioner joined service on September 1, 1928 and admittedly he has retired on superannuation on January 10, 1967.
He is entitled to pension under the Bihar Pension Rules, 1950.
The dispute is whether the petitioner is a member of the Bihar Education Service and what ought to be the method of computation of his pension ? on the first point, the matter is no more res integra because the Constitution Bench held that a reference to r. S of the Pension Rules shows that the officers mentioned therein are entitled to pension.
It was further held that there is no controversy that the petitioner is an officer in the Education Department of the Bihar Education Service, and this department is shown at item No. 3 of the Schedule to r. section Therefore, the controversy is concluded by decision between the parties that the petitioner is a member of Bihar Education Service and that under r. 5 of the Pension Rules, he is entitled to pension.
After the mandamus was issued by this Court, the petitioner approached amongst others the then Chief Minister of Bihar late Shri Kedar Pandey for implementing and giving effect to the mandamus, issued by the Supreme Court.
The Chief Minister directed that even though more than two years have elapsed since the issuance of the mandamus of the Chief Minister himself directed ten months prior to June 25, 1973 for payment of the claim of the petitioner as soon as possible and had insisted upon a weekly progress report on the processing of the file to be submitted to him, yet even the Chief Minister recorded his helplessness that he neither received the weekly report nor the mandamus has been implemented nor even the file was submitted to the Chief Minister for his perusal.
If this be plight of the Chief Minister of a popularly elected government what to talk of the lesser fly and what tears can be shed for a man in position of the petitioner who having rendered service for nearly 40 years was chasing the mirage for a paltry pension.
The Chief Minister apprehended that it is quite likely that not only the officers responsible for this mess but even the State Government may be called upon by the Supreme Court to explain the disregard of the mandamus.
He then made a peremptory order that the file be submitted to him for order.
924 Nothing moved as is the sad experience that nothing moves A unless like the law of inertia some outside force acts upon it and puts the file in motion.
What that outside force is we need not dilate.
Ultimately, the file reached the Chief Minister in 1974 on being called by him.
There is the long preamble setting out the history of litigation, the injustice done to the petitioner, the utter lethargy and aptly of the officers concerned and then the Chief Minister proceeded to dispose of the claim of the petitioner consistent with the mandamus issued by this Court.
The material portion which would help us in disposing of the present petition recites that the petitioner shall be treated in Class II posts of Bihar Education Service since his promotion and since 1.1.1952 he should be deemed to belong to Class I post of Selection Grade according to his seniority or from the date of direct appointment which derived the petitioner of equal opportunity, he was fully entitled to.
But the note is overgrowing with the courtesy of the Chief Minister in that he proceeded to request the Education Minister that for the ends of justice, a phraseology to which the courts are accustomed, the petitioner should be paid off his claim within a month for which any senior officer of the Education Department he made responsible.
Undue delay has been made in the implementation of the direction of the Hon 'ble Supreme Court and I would never like that Shri prasad be compelled again to go to Court. ' What a wishful thinking.
In that Mr. Prasad has been forced to come back to this Court and since then the then Chief Minister has left this world.
The resume the narration, petitioner received a letter dated February 6, 1976 3 years after the direction given by the Chief Minister that his pension case has been finalised and pension payment order of Rs. 156.55 p.m. and gratuity payment order of Rs. 5,850 are under issue.
It would appear at a glance that officers dealing with the pension case appears to have scant regard for the decision of the Supreme Court in that both the promotion to Class II and further promotion to Class I from deemed dates were ignored and pension was computed on the basis as if petitioner retired in Class III.
All the representation of the petitioner thereafter failed to evoke both a sympathetic response and a just decision and therefore the petitioner is back to square one.
The respondent State and all its officers are bound to compute pension of the petitioner not only on the footing that he is a member 925 Of the Bihar Education Service but also on the footing that he was promoted to Class II by the date mentioned in the earlier judgment A and from 1.1.1952 to Class I as rightly held by the Chief Minister.
Nothing was pointed out to us by Mr. Goburdhan to hold to the contrary nor can the State be permitted to play ducks and drakes with a solemn decision of the Constitution Bench of this Court.
To give effect to the mandamus of this Court, the respondent State shall proceed to compute the salary payable to the petitioner from the date he was promoted, to Class II Service and on the assumption that he was functioning in Class II in the salary scale then admissible to him equivalent to Class II Grade in Bihar Education Service.
This must commence from the date from which he was promoted as set out in the earlier judgment as Deputy Inspector of Schools at Seraikela.
In computing the salary for the purpose of computation Class II salary scale then prevalent for the post shall be taken up and the petitioner is deemed to have been put in that scale.
Yearly increments are added till 1.1.1952 when he must be deemed to have been promoted as admitted by the Chief Minister to Class I post in Bihar Education Service.
Same process is to be repeated by the respondent State in that the then prevalent Class I scale must be held admissible to the petitioner from January 1, 1952.
He must be 15 deemed to have been put in the scale and his annual increments to be worked out.
If in the process he is entitled to Selection Grade, the same must be worked out and this computation must be brought down to 10.1.1967 when the petitioner retired on superannuation from service.
On this computation of salary his pension shall be computed under the relevant rules of the Bihar Pension Rules as liberalised from time to time till 1967 and his pension must be determined as on 10.1.1967 on the aforementioned computation chart.
The State and the subordinate officers responsible for this work are directed by a writ of mandamus to complete this computation by July 31, 1983 and by that date pension payment order correct and consistent with the direction herein given shall be issued without fail to the petitioner.
The State is also directed by a mandamus of this Court to pay the arrears of pension on the afore mentioned computation within the same period with interest at 6% from 10.1.67.
As the officers of the State have harassed the petitioner which we 926 feel is intentional, deliberate and motivated, therefore, we are constrained to award exemplary costs quantified at Rs. 25,000 to be paid to the petitioner before July 31, 1983.
We propose to leave no one in doubt that the slightest failure or deviation in the time schedule in carrying out this mandamus will be unquestionably visited with contempt action.
H.L.C. Petition allowed.
[/INST]During the pendency of the ceiling appeal under the U.P. Imposition of Ceiling on Land Holdings Act, 1960, the sole appellant died on January 9, 1980, On October 25, 1980, his three sons applied for setting aside of abatement and condonation of delay and for substitution of their names as legal representatives of their deceased father.
The Additional District Judge dismissed the appeal on the view that there was no sufficient cause for condonation of delay and for vacating the abatement.
The High Court dismissed the appellants ' Writ Petition holding that Article 120 of the First Schedule of the was applicable and that therefore the petition for substitution should have been filed within 90 days from the date of death.
In appeal to this Court, it was contended that in view of the provisions of sections 38 and 42 of Act, the Code of Civil Procedure 1908 applied only for the disposal of appeals and the provisions of the , excepting sections 4, 5 and 12, were not applicable to proceedings under the Act.
Dismissing the appeal.
^ HELD: Section 38(1) of the Act clearly extends the procedure applicable to appeals under the Code to appeals under the Act.
The extension of the procedure available under the Code to appeals under the Act attracts the entire procedure of the Code relevant for the purpose of disposing of an appeal under the Act.
There is no substance in the contention that the principles of abatement and delay were not applicable to the instant case.
[738 C D] Under the Code.
when death occurs at an appellate stage, substitution is effected in accordance with the procedure laid down in Order XXII.
In terms of section 34(1) of the Act, if death occurred of one of the parties at the appellate stage of a ceiling appeal, substitution had also to be made according to the procedure laid down in O. XXII of the Code.
Rule 11 of Order XXII indicates that the provisions of the Code do apply to appeals.
[737 B] 735 Again under Rule 3(2) of Order XXII if no application is made under sub rule (1) within the time limited by law the suit shall abate.
Time has been limited by law in Article 120 of the First Schedule of the which provides that an application under the Code to have the legal representatives of the deceased appellant made a party has to be within 90 days from the date of death of the appellant and Article 121 provides 60 days period for the application for an order to set aside abatement from the date of abatement.[737 E G] If the Code and the applied at the time when the application for substitution was made, the legal representatives had to ask for substitution, setting aside of abatement and condonation of delay in term of rule 9(3) of Order XXII of the Code.
There is little room to dispute that if order XXII of the Code applies necessarily Articles 120 and 121 of the First Schedule of the would also apply.
[737 A] In the instant case the application for substitution of the legal representatives of the deceased appellant when made, was beyond 150 days from the date of his death and the High Court had rightly rejected the appellants ' application.
</s>
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<s>[INST] Summarize the judgementiminal Appeal No. 113 of 1965.
Appeal from the judgment and order dated October 26, 1964 of the Allahabad High Court in Criminal Revision No. 803 of 1963.
J. P. Goyal, for the appellants.
O. P. Rana and Atiqur Rehman, for respondent No.1.
section K. Mehta and K. L. Mehta, for respondent No., 2.
B. R. L. lyengar and B. R. G. K. Achar, for the Intervener.
The Judgment of the Court was delivered by Mudholkar, J.
The only point which falls to be decided in this appeal by certificate granted by the High Court at Allahabad is whether the District Judge has jurisdiction under section 24 of the Code of Civil Procedure to transfer a reference made by a Magistrate to a particular civil court under section 146 of the Code of Criminal Procedure to another civil court.
It arises this way.
Proceedings under section 145, Cr.
P.C. were initiated by a Magistrate on the basis of a report of a police officer to the effect that a dispute likely to cause a breach of the peace exists concerning a plot of land situate within the jurisdiction of the Magistrate between the parties mentioned in the report and praying for appropriate action under section 145 of the Code of Criminal Procedure.
The learned Magistrate upon being satisfied about the possibility of a breach of the peace made a preliminary order under section 145, Cr. P.C., attached the property to which the dispute related and called upon the parties to adduce evidence in respect of their respective claims.
In due course he recorded the evidence but he was unable to make up his mind as to which of the parties was in possession on the date of the preliminary order and within two months thereof.
He, therefore, referred the case under section 146(1) of the Cr. P. C. to a civil court for decision, as to which of the parties was in possession at the material point of time and in the meanwhile directed that the attachment of the Property shall continue.
The reference went to the court of the Munson within whose territorial jurisdiction the property was situate.
But thereafter one of the parties Brij Gopal Binani, respondent No. 2 before us, made an application to the District Judge under section 24, C.P.C. for transfer of the case to some other.
court.
The, ground given was that in the execution case out of which proceedings under section 145, Cr.
P.C. had arisen, the same Munsiff had.
made an order against him depriving him of costs.
The Munsiff having no objection to the transfer the District Judge ' transferred the case to the court of another Munsiff.
The opposite parties, that.
is, the appellants before us Ram Chandra Aggarwal and Kedar Prasad Aggarwal acquiesced in the order of transfer and did not raise any question as to the jurisdiction of the, transferee court to hear and decide the reference.
Eventually evidence was led by both sides ' and a finding given by the transferee court.
This finding was in favour 395 of the second respondent.
After receiving the finding the I Magistrate heard the parties and held that it was the second respondent who was in possession at the relevant date and passed an order under section 145(6), Cr.
P.C. pursuant thereto.
A revision application was preferred by the appellants before the court of Sessions in which the objection was taken for the first time that the decision of the civil court was a nullity because it had no territorial jurisdic tion over the subject matter of the dispute.
It was further contended that the District Judge had no jurisdiction to transfer the case and that consequently the ultimate order made by the learned Magistrate was a nullity.
The learned Additional Sessions Judge who heard the revision application rejected these contentions on the ground that they were not raised earlier.
The appellants then took the matter to the High Court in revision.
The appellants rested their revision application on the sole ground that section 24, C.P.C. was not available in respect of a reference under section 146(1) Cr.
P.C. and that, therefore, the proceedings subsequent to the transfer of the reference from the court of one Munsiff to that of another are a nullity.
The High Court permitted the point to be urged.
The attack was based upon two grounds: that the reference under section 146(1), Cr.
P.C. was to a persona designata and that the provisions of section 24, C.P.C. were not available with respect to it.
The second ground was that the proceeding before the civil court was not a civil proceeding within the meaning of section 141, C.P.C.
The High Court negatived both the grounds on which the contention was based.
On behalf of the appellants Mr. Goyal has reiterated both the contentions.
In fairness to Mr. Goyal it must be said that his attack on the order of the District Judge transferring the case under section 24, C.P.C. was based more on the ground that the reference under section 146(1) Cr.
P.C. is not a civil proceeding than on the ground that the reference was to a persona designata.
However, as he did not wish to abandon the other point we must deal with it even though Mr. B. R. L. Iyengar who appears for the State conceded that a reference under section 146(1) is to a constituted court and not to a persona designata.
In BalakrishnaUdayar vs Vasudeva Aiyar(1) Lord Atkinson has pointed out teh difference between a persona designata and a legal tribunal.
The difference is in this that the "determinations of a persona designata are not to be treated as judgments of a legal tribunal".
In the central Talkies Ltd. vs Dwarka Prasad(2) this 'Court has accepted the meaning given to the expression persona designata in Osborn 's Concise Law Dictionary.
4th edn.
p. 263 as eta person who is pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular characters Section 146(1) Cr.
P.C. empowers a Magis 396 trate to refer the question as to whether any, and if so, which of the parties was in possession of the subject matter of dispute at.
the relevant point of time to a civil court of competent jurisdiction.
The power is not to refer the matter to the presiding Judge of a particular civil court but to a court.
When a special or local law provides for an adjudication to be made by a constituted court that is, by a court not created by a special or local law but to an existing court it in fact enlarges the ordinary jurisdiction of such a court.
Thus where a special or local statute refers to a constituted court as a court and does not refer to the presiding officer of that court the reference cannot be said to be to a persona designata.
This question is well settled.
It is, therefore, unnecessary to say anything more on this part of the case except that cases dealing with the point have been well summarised in the recent decision in Chatur Mohan vs Ram Behari Dixit.(1).
Now, as to the argument based on the ground that the pro ceeding before the civil court is not a civil proceeding, Mr. Goyal 's contention is that since the proceeding before the criminal court under section 145 is a criminal proceeding any matter arising out of it, including a reference to a civil court, does not lose its initial character of a criminal proceeding.
In support of his contention he has placed strong reliance upon the observations of Jagdish Sahai J., in Sri Sheonath Prasad vs City Magistrate, Varanasi.
(2) In that case the learned Judge was called upon to consider the meaning of the expression "civil court of competent jurisdiction" occurring in section 146(1) of the Code of Criminal Procedure.
It was contended before him that the competency of the court is to be determined not merely with respect to the territorial jurisdiction of the court but also with respect to its pecuniary jurisdiction.
The question arose because it was contended before him that the finding on a question of possession was recorded by a civil court which though it had territorial jurisdiction over the subject matter of the dispute the value of the subject matter was in excess of the pecuniary jurisdiction of the court.
In the course of his judgment the learned Judge has observed: "that a proceeding even on reference made to a civil court retains its old moorings and does not change its character from a criminal proceeding to a civil proceeding and does not become a proceeding in the suit.
" Then he went on to point out that the criminal court still retains its jurisdiction because it could withdraw the reference from the civil court at any.
time and also because the ultimate decision with the respect to the dispute between the parties was to be made by the Magistrate and not by the civil court.
All this, according to the learned Judge, would show that the proceeding even: before the civil court would not be a civil proceeding.and the idea of pecuniary jurisdiction of a court being foreign to the Code of Criminal Procedure it was not necessary to (1) 1964 All.
L. J. 256.
(2) A.I.R. 1959 All.
467. 397 ascertain whether the court to which a reference was made under section 146(1) Cr.
P.C. had pecuniary jurisdiction over the subject matter of the dispute or not.
This ' decision ignores the vast 'body of authority which is to the effect that when a legal right is in dispute and the ordinary courts of the country are seized of such dispute the courts are governed by the ordinary rules of procedure applicable to them.
Two of the decisions are Adaikappa Chettiar vs Chandrasekharca Theyar(1) and Maung Ba Thaw vs Ma Pin(1) and also a decision of this Court which proceeds upon the same view.
Thus in South Asia Industries (P) Ltd. vs section B. Sarup Singh(1) it was held that where a statute confers a right of appeal from the order of a tribunal to the High Court without any limitation thereon 'the appeal to the High Court will be regulated by the practice and procedure obtaining in the High Court.
We would also like to refer to the decision of this Court in Naravan Row vs Ishwarlal(1) in which it was held that there is no reason for restricting the expression "civil proceeding" only to those proceedings which arise out of civil suits or proceedings which are tried as civil suits.
Though this decision was concerned with the meaning of the words "civil proceeding" used in article 133(1)(c) of the Constitution the reasoning behind it sufficiently repels the extreme contention of Mr., Goyal that a proceeding stemming from a criminal matter must always bear the stamp of a criminal proceeding.
Then, according to Mr. Goyal, when a magistrate refers a question as to which: party was in possession at the relevant date what be does is to delegate that duty, initially resting upon him, to the civil court.
In performing that duty the civil court would, therefore, be acting as a criminal court just as the magistrate would be doing where he has to decide the question himself.
The two Privy Council decisions we have referred to sufficiently answer this contention.
No doubt, the Magistrate, while discharging his function under the Code of Criminal Procedure under section 145(1), would be exercising his criminal jurisdiction because that is the only kind of jurisdiction which the Code confers upon the magistrates but when the magistrate refers the question to a civil court he does not confer a part of his criminal jurisdiction upon the civil court.
There is no provision under which he can clothe a. court or a tribunal which is not specified in the Criminal Procedure Code with criminal jurisdiction We are, therefore, unable to accept the contention of Goyal.
Mr. Iyengar tried to put the matter in a somewhat different way.
In the first place.
according to him , if we hold that the proceeding before the civil court is a, civil proceeding then all the rules of procedure contained in the Civil Procedure Code,.
including those relating to appeals or revision would apply to the proceeding.
(1) 74 I.A. 264.
(2) 61 I.A. 158.
(3)[1966].2 S.C.R. 756.
(4) A.I.R. 1956 S.C.1818 398 he points out, would be contrary to the provisions of section 146(1 P) of Code of Criminal Procedure which bar an appeal,review or revision from any finding of the civil court.
From this he wants us to infer that the proceeding does not take the character of a civil proceeding even though it takes place before a civil court.
We are not, impressed by this argument.
If sub section
(1 D) had: , not been enacted (and this is really a new provision) an appeal or revision application would have been maintainable.
Now that it is there, the only effect of it is that neither an appeal nor a revision is any longer maintainable.
This consequence ensues because of the express provision and not because the proceeding, before the civil court is not a civil proceeding.
The next contention and it was the one pressed strenuously by him was that a proceeding upon a reference under section 146(1) entertained by a civil court not being an original proceeding the provisions of section 141, C.P.C. are not attracted and that, therefore.
those provisions of the Civil Procedure Code which relate to suits are not applicable to a proceeding undertaken by a civil court upon a reference to it under section 146(1) of the Code of Criminal Procedure.
A number of cases dealing with this point were brought to our notice either by him or by Mr. Goyal.
It seems to us, however, that those cases are not relevant for deciding the point which is before us.
In passing, however, we may mention the fact that a full bench of the Allahabad High Court has held in Maha Ram vs Harbans(1) that the civil court to which an issue on the quest ion of proprietary rights has been submitted by a revenue court under section 271 of the Agra Tenancy Act, 1926 has jurisdiction to refer,the issue to arbitration under paragraph I of Schedule II of the C.P C.
This decision is based upon the view that by virtue of section 141, C.P.C. the provisions relating to arbitration contained in the second schedule to the Code of Civil Procedure before the repeal of that schedule applied to a proceeding of this kind.
Similarly recently this Court has held in Munshi Ram vs Banwarilal(2) that under section 41 of the Arbitration Act and also under section 141, C.P.C. it was competent to the court before which an award made by an arbitration tribunal is filed for passing a decree in terms thereof to permit Parties to compromise their dispute under O. XXIII, r. 3, C.P.C.
Though there is no discussion, this Court has acted upon the view that the expression" 'civil proceeding" in section 141 is not necessarily confined to an original proceeding like a suit or an application for appointment of a gurdian etc.
but that it applies also to a proceeding which is not an original proceeding.
Thus, though we say that it is not an original to consider in this case whether.
the proceeding before the civil court is a civil proceeding as contemplated by section 141 or not there is good authority for saying that it is a civil Proceeding.
All that we are concerned with in this case is whether (1) I.L.R. [1941] All.193 (2) I.L.R. 1962 S.C.903.
399 the provisions.
of section 24(1)(b) of the Code of Civil Procedure are available with respect to a proceeding arising out of a reference ,,under section 146(1), Cr.
The relevant portion of section 24 may, therefore be set out.
It reads thus: "On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage (a) (b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or III. . . . .
It plainly speaks of "other proceeding pending in any court subordinate to it" and not only to the civil proceeding pending before a subordinate court.
The decisions of the Privy Council and one decision of this Court which we have earlier quoted would warrant the application of the provisions of the Code of Civil Procedure generally to a proceeding before a civil court arising out of a reference to it by a Magistrate under section 146(1) of the Code of Crimi nal Procedure.
The expression "proceeding" used in this section is not a term of art which has acquired a definite meaning.
What its meaning is when it occurs in a particular statute or a provision of a statute will have to be ascertained by looking at the relevant statute.
Looking to the context in which the word has been used in section 24(1)(b) of the Code of Civil Procedure it would appear to us to be something going on in a court in relation to the adjudication of a dispute other than a suit or an appeal.
Bearing in mind that the term "proceeding" indicates something in which business.
is conducted according to a prescribed mode it would be only right to give it, as used in the aforesaid provision, a comprehensive meaning so as to include within it all matters coming up for judicial adjudication and not to confine it to a civil proceeding alone.
In a recent case Kochadai Naidu vs Nagavasami Naidu(1) Ramachandra lyer J., (as he then was) was called upon to consider the very question which arises before us.
The learned Judge held (1) I.L.R. 400 that a proceeding before a civil court arising out of a reference to it under section 146(1), Cr.
P.C. can be transferred by the High Court or District Court under section 24, C.P.C. because it is in any case a proceedings.
He has also considered this question from the angle of the nature of the proceeding and expressed the view that the proceeding was a civil proceeding to which the procedure for suits could, with the aid of section 141, C.P.C. be applied.
If indeed the term "proceeding" in section 24 is not confined to a civil proceeding there is no need whatsoever of taking the aid of section 141, C.P.C.
Upon this view we dismiss the appeal.
Appeal dismissed.
[/INST]The plaintiffs instituted a suit for partition of immovable property constituting two blocks and for rendition of accounts.
They claimed that the property was purchased with the capital of the partnership firm in which the plaintiffs and the defendant were Partners and that by two documents dated July 2, 1937 and July 16, 1937, the properties continued to remain in the ownership of the partnership firm, though the firm was dissolved in 1937.
The defendant contested the suit on various grounds and also alleged that he had invested Rs. 10,000/ for constructing a building on the land in one of the blocks.
The trial Court granted the plaintiffs a decree for most of the reliefs sought.
The High Court, in appeal, held that the plaintiffs were entitled to claim half share in the properties and that the defendant was liable to account for the income from the date of dissolution i.e. July 2, 1937 in the case of one block and from 1939 in the case of the other block and furthermore that the plaintiffs were liable to pay half the amount spent by the defendant in constructing the building on one of the blocks.
Upon a remand of the case to the trial Court a Commissioner was appointed to examine the accounts of rent realized by the defendant and on the basis of his report, the trial court granted the plaintiffs a decree for the amount payable to them as their half share, together with interest upto April 1957 and after deducting the plaintiffs ' share of the expenditure incurred by the defendant on the building.
In further appeals to the High Court by both the parties the decision of the trial court was substantially confirmed.
In the appeal to this Court by the defendant, it was contended, inter alia, on his behalf that the trial court and the High Court had erroneously decided that the defendant was liable to pay interest for the period prior to the institution of the suit on the half share of the rental income on the ground that the relationship between the par ties was in the nature of a trust under Section 90 of the Trusts Act, 1882.
On the other hand the contentions for the respondents were that interest prior to the date of institution of the suit could be paid to them under the Interest Act, 1839: that the defendant was in possession of the entire properties as as Owner after the dissolution of the partnership by the document dated July 16, 1937 and that as he 165 was realizing rents of the properties, he was in the position.
of a constructive trustee under section 95 of the Trusts Act and was liable therefore to pay interest on the plaintiffs ' share of rent under section 23 read with section 95 of the Act; and that he was in any event liable to pay interest under section 23(b) of the Trusts Act because there was unreason able delay in paying the trust money to the beneficiary.
HELD: Interest was only payable to the plaintiffs at the rate of 6% per annum from the date of the final decree on the amount found due to the plaintiffs.
It is well established that interest may be awarded for the period prior to the date of the institution of the suit if there is an agreement for the payment of interest at fixed rate or if interest is payable by the usage of trade having the force of law, or under the provisions of any substantive law as for instance under section 80 of Negotiable Instruments Act or section 23 of the Trusts Act.
It was admitted in the present case that the two agreements between the parties dated July 2,1937 and July 16,1937 did not provide for payment of interest on the rental reilised by the, defendant on the joint properties.
Nor was interest payable under any provision of law governing the case.
Under the Interest Act, 1839, the court may allow interest if the amount claimed is a sum certain which is payable at a certain time by virtue of a written instrument but it was conceded that was not the position in the present case.
The provision in section 1 of the Interest Act that "interest shall be payable in all cases in which it is now payable by law," applied only to cases in which the Court of Equity exercised jurisdiction to allow interest.
[168 B D].
Bengal Nagpur Railway Co. Ltd. vs Ruttanji Ramji 65 I.A. 66, Thawardas Pharumal vs Union of India, Union of India vs Rallia Ram, ; and Union of India vs Watkins Mayor & Co. A.I.R. 1966 section C. 275, referred to.
There was no force in the contention that section 90 of the Trusts Act applied to this case.
A co owner in possession of all the joint properties does not become a trustee by the mere fact of his collection of the full amount of rent from the tenants.
If the co owner is to be clothed with the status of a trustee, itmust be shown that he has gained some advance in derogation ofthe other co owners interested in the property and that he gained such advantage by availing himself of his position as co owner.
In the present case, there was no allegation or finding by the trial court that the defendant had gained any such advantage.
[17O E] Even assuming that the defendant was in the position of a constructive trustee, he would be liable to pay interest under section 23 only if he committed a breach of trust and in the present case there was no question of any such breach on his part.
Furthermore, he was not liable to pay interest under section 23(b) as that provision contemplates cases where there is an obligation on the part of the trustee to pay the trust money to the beneficiary at fixed intervals or on demand.
[170 F].
Blogg vs Johnson., [1867] 2 Ch.
A 225, Silkstone and Haigh Moor Coal Co. vs Edey, ; Malland V. Gray and Guildrey vs Stevens , referred to.
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<s>[INST] Summarize the judgementAppeal No. 265, of 1966.
Appeal by special leave from the judgment and order dated January 10, 1966 of the Assam and Nagaland High Court in Civil Rule No. 266 of 1965.
Naunit Lal, for the appellants.
R. Gopalakrishnan, for respondent No. 1.
The Judgment of the Court was delivered by Shah, J.
Daksha Prasad Deka hereinafter called 'the res pondent ' was appointed Assistant Sub Inspector of Police with 688 effect from January 17, 1929.
On a representation made by the respondent the date of his birth was entered in the service record as July 1, 1910.
Under F.R. 56(a) the respondent was liable to be compulsorily retired on July 1, 1965.
In 1956 the respondent applied that the date of birth entered in his service record 'be showing as August 1 191 1.
That application was rejected.
The respondent again applied in 1963 for correction of his date of birth.
The application was, rejected and by order dated June 26, 1965, the respondent was informed that he win stand superannuated on June 30, 1965.
His representation made to the Government of Assam against that order was unsuccessful.
The respondent then applied to the High Court of Assam praying for a writ in the nature of mandamus requiring the State ,of Assam to forbear from giving effect to the order dated June 26, 1965.
The High Court quashed the order dated June 26, 1965 and directed the State of Assam to give an opportunity to the respondent to show cause against the order directing compulsory retirement and an opportunity to prove his true date of birth.
Against that order, this appeal is preferred with special leave.
In the opinion of the High Court if the true date of birth of the respondent was August 1, 1 9 1 1, the order compulsorily retiring the respondent on June 30, 1965, without giving him an opportunity to prove his true age, infringed the guarantee of article 311(2) of the Constitution.
In our judgment, the High Court was wrong in holding that there was any infringement of article, 311(2) of the Constitution.
In the service record of the respondent his date of birth was recorded as July 1, 1910 and under F.R. 56(a) the respondent was liable to be compulsorily retired on the date on which he attained the age of 55 years.
The date of compulsory retirement under F.R. 56(a) must in our judgment, be determined on the basis of the service record, and not on what the respondent claimed to be his date of birth, unless the service record is first corrected consistently with the appropriate procedure.
A public servant may dispute,.the date of birth as entered, in the service record, and may apply for correction of the record.
But until the record is corrected, he cannot, claim that he has been deprived of the guarantee under article 311(2) of the Constitution by being compulsorily retired on attaining the age of ' superannuation on the footing of the date of birth entered in the service record.
is true that the State authorities did not give to the respondent an opportunity to support his case that he was born on 689 August 1, 1911, and that the service record was erroneous.
But in view of S.R. 8 Note, which governed the employment of the respondent an application for correction of the service record could not be entertained if it was made within three years before the date of "actual supernuation".
S,R. 8 Note provides "No alteration in the date of birth of a Government servant should be allowed except in very rare cases where a manifest mistake has been made.
Such mistakes should be rectified at the earliest opportunity in the course of (1) periodical re attestation of the entries in the first page of service book, and (2) preparation of the annual detailed statement of a permanent establishment (Financial Rule Form No. 11) in which is noted the date of, incumbent 's birth.
In no case the request for change in the date of birth of a Government servant made on a date with three years of the date of ' his actual.
superannuation ' should be entertain ed.
" Validity of the Rule is not challenged by the respondent.
are unable to agree with the view of the High Court that the date of "actual superannuation" within, the meaning.
of S.R. 8 Note is the date of superannuation computed with reference to the claim made by the public servant, and not with reference to the date as entered in the service record.
If such an interpretation be accepted, S.R. 8 Note would prove in a majority of cases of no practical utility.
It is intended by S.R. 8 Note that any error 'in the service record shall be rectified at the, earliest opportunity and in no case should an application for rectification be entertained within three years of the "date of actual super annuation".
i.e. the date of superannuation according to the service record.
Again, if the contention of the respondent were correct, on the date on which he entered service he was a minor.
If on a representation that he had attained the age of majority on the date on which he entered service, it would not be open for him, after being admitted to the service, to contend that under the appropriate service rules he could not have been admitted to the service, but for the misrepresentation made by him.
Counsel for the respondent relied upon the judgment of this Court in State of Orissa vs Dr. (Miss) Binapani Dei & Ors.
(1) in support of the contention that a public servant must be given an opportunity to prove his true date of birth before he is superannuated, and any order passed without such opportunity is illegal.
In our judgment Dr. (Miss) Binapani 's case(1) enunciates no such proposition.
In that case in the service record of a pub (1) 1967 2 section C. R. 625 2 L 694 Sup.
C.I/171 690 lic servant, April 10, 1910 was entered as the date of 'her An enquiry was, held and the public servant was required to show cause why her date of birth should not be accepted as April 1907.
Thereafter the Government of Orissa determined her of birth as April 16, 1907, and declared that she should deemed to have been superannuated on April 16, 1962.
order was challenged by the public servant in a petition to High Court of Orissa.
The High Court held that the order the State Government amounted to compulsory retirement before she attained the age of superannuation and was contrary to the rules governing her service conditions and amounted to removal within the meaning of article 311 of the Constitution, and since :she was not given a reasonable opportunity of showing cause against the action proposed to ';be taken in regard to her, the order was invalid.
This Court confirmed the order passed by the High Court of Orissa.
It was observed by this Court that ,even an administrative order which involved civil consequences must be made consistently with the rules of natural justice 'The person concerned must be informed of the case of the State and the evidence in support thereof and must be given a fair opportunity to meet the case before an adverse decision is taken The public servant, according to the service record, could not be superannuated before April 10, 1965.
But by an enquiry which was not held in a manner consistent with the rules of natural justice an order was made altering the date of birth as entered in the service record, and declaring that she was born in 1907 That was plainly an order passed to the prejudice of the public servant without giving an opportunity to meet the case of the State.
In the present case, however, the State did not seek to modify the service record: it was the respondent who sought modification of the service record and claimed that he declared only on the basis of the rectification prayed for by him.
It is true that ordinarily when an application is made for rectification of age by a public servant, the State should give the applicant proper opportunity to prove his case and should give due consideration to the evidence brought before it.
But in the present case, since the application for rectification was made within three years of the date of actual superannuation, according to S.R. 8 Note the application could not be, entertained.
The principle of Dr. (Miss) Binapani 's case(1) has no application to this case.
The appeal is allowed and the order passed by the High Court is set aside.
The petition filed by the respondent shall stand dismissed.
There will be no order as to costs throughout.
[/INST]The respondent was appointed Assistant Sub Inspector of Police with effect from January 17, 1929, and on his own representation his date of birth was entered in the service record as July 1, 1910.
Under F.R. 56(a) he was liable to be compulsorily retired on July 1, 1965. 'In 1963 he applied that the date of birth in the service record may be corrected as.
August 1, 1911.
The application was rejected without giving him an opportunity to support his case and he was informed on June 26, 1965.
that he would stand superannuated on June 30, 1965.
He filed a writ petition in the High Court and the High Court quashed the order dated June 26, 1965.
In appeal to this Court HELD : Until the service record of a public servant is corrected he cannot claim that he has been deprived of the guarantee under article 311(2) of the Constitution by being compulsorily retired on attaining the age of superannuation on the basis of the service record.
A public servant may dispute the correctness of the date of birth as entered in the service record and may apply for its correction, but in view of S.R. 8 Note, which governed the employment of the respondent, an application for such a correction could not be entertained if it was made within three years before the date of 'actual superannuation '.
The words 'actual superannuation ' mean the date of superannuation according to the service record, and not according to the date of birth claimed by the public servant.
The respondent represented that he had attained the age of majority on the date on which he entered service.
It was not open to him to contend that under the appropriate service rule he could not have been admitted to the service.
[688 G H, 689 A B, F G] State of Orissa vs Dr. (Miss) Bimapani Dei, [1967] 2 S.C.R. 625 explained.
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<s>[INST] Summarize the judgementvil Appeal Nos.
4397 98 of 1989 etc.
From the Judgment and Order dated 30.11.1988 of the Central Administrative Tribunal at New Delhi in O.A. Nos. 838 of 87 and 1502 of 1987.
606 K. Sibal, Additional Solicitor General, A. Subba Rao, C.V.S. Rao and M.S. Ganesh for the appellants.
Respondent No. 1 in person.
D.K. Garg, R.P. Oberoi and D.B. Vohra for the respondents.
The judgment of the Court was delivered by R.M. SAHAI, J.
Seniority in services is usually irksome.
But the nature of dispute amongst officers in Class 'A ' of Indian Defence Estates Service, who were promoted from Class 'B ' of Military and Cantonment service where they were working as Assistant Military Estates Officers (AMEO) and Assistant Military F. states Officers (Technical) (AMEOT), is slightly, unusually.
That is why apart from correctness or otherwise of directions issued by the Tribunal (Central Administrative Tribunal, New Delhi) for re determining seniority one of the issues debated was if this Court in exercise of its powers under Article 136 of the Constitution of India should interfere with orders of Tribunal if sub stantial justice has been done between parties.
To this may be added, yet, another, namely, if the Union of India should have approached this Court by way of Special Leave Petition not for sake of justice or injustice, legality or illegality of any provision but because it may have to pay few thou sands, may be few lakhs more.
But, first, manner of appointment of two group of offi cers and rules by which they were governed from time to time may be noticed as even though initially posts of both AMEO and AMEOT were sanctioned and created by the President in 1962 and they were governed for some time by different set of rules but were brought in common stream in 1976 and were promoted in Class 'A ' before fresh rules were enforced in 1983 and 1985, yet entire thrust of attack to justify dif ferential treatment to AMEOT was rounded on difference in method of their selection.
AMEOS were included in Class II of Military Land and Cantonment Service (Class I and II) Rules, 1951 for the first time in 1964.
Relevant amendment by notification issued in 1964 was incorporated in 1951 Rules when it was amended in 1968.
Amended Rule 4(v)(c) read as under: "Class II of the Service shall consist of Executive Officers Class II, Assistant Military Estates Officers and such other posts, as may, by order of the Government be declared to be included in Class II cadre of the Service." 607 Manner of appointment to this class was provided by Rule 5(b) which is extracted below: "(b) Appointment to Class II Cadre of the Service shall be made in the following manner, namely: (1) upto 20% of vacancies in Class II, by promotion from among the serving Class III staff of the Military Lands and Cantonments Service having service and educational qualifi cations specified in sub rules (c) and (e); (2) upto 20% of vacancies by direct recruitment made by a selection from among serving employees of Cantonment Boards having service and educational qualifications specified in sub rules (d) and (e); (3) the remaining vacancies from among the candidates who qualify at the Examination and are recommended by the Com mission but who fail to secure Class I appointment in any of the Central Services. 'Provided that (i) for a period of five years commencing from the 29th January, 1966, 30 per cent of the permanent vacancies to be filled by direct recruitment in any year shall be reserved for being filled in by the Emer gency Commissioned Officers of the Armed Forces of the Union who were commissioned on or after the 1st November, 1962, and who were released at any time thereafter." In 1981 service known as Military Lands and Cantonment Service (Group A) was constituted.
75% of the substantive vacancies, in this Group 'A ', junior scale, were to be filed by direct competition and 25% by promotion from a panel prepared on the basis of selection on merit in ratio 1:1 from amongst Cantonment Executive Officer Group 'B ' and Assistant Military Estates Officer Service (Group B) who had not rendered less than 3 years regular service.
AMEO (Technical) on the other hand were officers who were released from Engineering Service of Army after 1962.
Since there was increase in work load and they were to be absorbed as well they were appointed on recommendation of UPSC (Union Public Service Commission) in 1964 and 1965 against posts which were created from time to time by the Military Land and Cantonments Department as is clear 608 from various orders issued in 1963, 1967 and 1970 which have been extracted in the order of Tribunal to demonstrate that the Director, Military Lands and Cantonment, Ministry of Defence, issued letters conveying the sanction of the Presi dent to the creation of various posts in the Military Lands & Cantonment Service which included Assistant Military Estates Officers (Technical).
Although the appointment letter issued to each officer mentioned that the post was temporary yet each was appointed on probation of two years.
The word "Technical" appears to have been added because they were engineers.
Otherwise there was neither difference in pay nor in work as the AMEOT were appointed to work as AMEO as well.
AMEOT were thus qualified persons holding rank in Army.
To say that they were lesser in merit than AMEO, only, because they had not appeared in competitive examination was being uncharitable to them.
To misfortune of AMEOT they were neither included in the Class II cadre of 1951 Rules nor any other rule was applied to them.
Presumably because of method of recruitment.
All the same it was very unsatisfactory that posts of AMEOT were being created and selections made in pursuance of advertise ment issued by the UPSC yet they were not being provided any statutory basis.
Realising this rules were framed under Article 309 in 1968, but these rules again did not provide for promotions, seniority etc.
However, the anomoly was finally removed, when officers appointed prior to 1967 or under 1968 Rules as AMEOT were included in Class II of 1951 Rules by amending Rule 3 in 1976 which read as under: "3.
The Service shall be constituted by officers appointed (i) in accordance with these rules; (ii) in accordance with the Military Lands and Cantonments Service (Assistant Military Estates Officers Technical) Recruitment Rules, 1968; and (iii) in consultation with the Commission, as Assistant Military Estates Officer (Technical), prior to the 1st January, 1967.
" Thus from this date officers appointed as AMEOT either under the 1968 Rules or prior to it became members of Mili tary Lands and Cantonment Service (MLC) to whom 1951 Rules applied.
On that there is no dispute.
But what about 1964 to 1976? Should they be 609 deemed to have served under no rules as claimed by AMEOS and strangely even by Union, or they were governed by Central Civil Services (Temporary)Rules 1965 (CCS Rules).
And if so what was its effect on their promotion and seniority.
For this one of the appointment letter issued to AMEOT contain ing terms and conditions is extracted below: MEMORANDUM Subject: Recruitment to the post of Assistant Military Estate Officer (Technical) Military/Lands & Cantonments Service.
On the recommendation of the Union Public Service Commission, the President is pleaded to offer Shri Mahandra Pal Singh, a temporary post of Assistant Military (Estate Officer Technical) in the Military Lands & Cantonment Serv ice Under Ministry of Defence.
xxx xxx xxx The terms and conditions of appointment are as follows: (i) The post is temporary.
In the event of its becoming permanent his claim for permanent absorption will be Consid ered in accordance with the rules in force.
(ii) He will be on probation for a period of two years from the date of appointment which may be extended at the discre tion of the competent authority.
Failure to complete the period of probation to the satisfaction of the competent authority will render him liable to discharge from service or reversion to his parent department in case he is holding a permanent posts.
XXX XXX XXX (iv) The appointment may be terminated at any time on one month 's notice given by either side, viz., the appointee or the appointing authority, without assigning any reasons, or by reverting the individual to his parent department, in case he is holding a lien.
The appointing authority, howev er, reserves the right of terminating the services of the appointee forthwith or before the expiry of the stipulated 610 period of notice by making payment to him of a sum equi .
valent to the pay and allowance for the period of notice or the unexpired portion thereof.
(v) He will be subject to conditions of service as applica ble to temporary civilian Government servants paid from Defence Services Estimates in accordance with the orders issued by Govt.
of India from time to time.
He will be subject to Field Service Liability Rule, 1957.
" What stands out Clearly from it is that they were appointed in Military Lands and Cantonment Service (MLC) under Minis try of Defence.
That is clear from the order creating the posts from time to time.
Letter dated 27th April, 1963 is extracted below: "To The Director, Military Lands & Cantts.
New Delhi.
Subject: Establishment of the New Eastern Command Sanction of Staff.
Sir, Consequent on the establishment of the New Eastern Command and re organisation of the existing Eastern Command into Central Command, I am directed to convey the sanction of the President to the creation of the following posts in the Military Lands and Cantts.
Services: 1.
Director, Military Lands & Cannts.
Asstt.
Director, ML & C. 1 3.
Military Estates Officer (Bihar & Orissa) 1 4.
Asstt.
Estates Officer, (Technical Class II) 2" Therefore it is too late to claim that they were not ap pointed to Military Land and Cantonment Service under Minis try of Defence.
Was their status effected or nature of employment altered because 611 Central Civil Service (Temporary service) 1965 Rules applied to them.
These rules applied to 'service under the Govern ment of India in the Ministry of Defence . paid out of the Defence Service Estimates '.
Purpose of the rule was not to create a cadre or grade of temporary employees but to provide statutory basis to employees of different depart ments mentioned in it and accord them a quasi permanent status if they fulfilled the requirements mentioned in Rule 3.
Seniority, promotion etc.
were to be governed by the rules under which the temporary employee was appointed.
Therefore, seniority of an employee and its determination depended on service in the cadre to which he belonged or to which he was appointed.
That the AMEOT were appointed to MLC service cannot be disputed.
Nor it can be disputed that they were appointed to posts which were created by the President and its sanction was conveyed by the Director of MLC.
The only shortcoming was that there was no declaration that these posts were included in Class II Cadre.
That also stood removed in 1976.
Since it included every AMEOT whether appointed under 1968 Rules or even prior to it all those AMEOT who were appointed in 1964 or 1965 also become member of service to whom 1951 Rules applied.
Automatic consequence of it was that seniori ty of AMEOT was to be determined under Rule 11 of 1951 Rules on length of regular service in the cadre.
That is what the tribunal held.
And rightly.
Whether service rendered by the respondents between 1964 to 1976 was regular or it could be deemed to be regular as held by the Tribunal is different.
Assuming, the Tribunal committed error in applying 1951 Rules to service of AMEOT prior to 1976, does it call for any interference? Is the order not just and fair? Effect of Tribunal 's order is that it cured the injustice perpetrated due to absence of exercise of power by the Government under Rule 4(v)(c) of 1951 Rules as it stood amended since 1964.
Substantial justice being one of the guidelines for exercise of power by this Court the order is not liable to interfer ence.
What is baffling is filing of the SLP by Union Govern ment.
Not because of any injustice to AMEO as that has been taken care of by Tribunal by protecting all those who are working but because if it works out seniority of AMEOT from back date it may have to pay substantial amount and creation of superanuary posts may further entail cost.
Justice is alert to differences and sensitive to discrimination.
It cannot be measured in terms of money.
A government of a welfare state has gruelling task of being fair and just and so justice 612 oriented in its approach and outlook.
Mere rectification of its mistakes or omissions by Courts and Tribunals should not prompt parties or it to approach this Court by Special Leave merely for taking a chance or to protect some vested inter est except for sake of justice or for laying down law for benefit of Court and its guidance.
Neither was in this case.
Injustice to respondents is apparent as admittedly these officers were promoted in Class 'A ' in 1978 and are working since then uninterruptedly yet when review DPC were held in pursuance of the judgment given by Allahabad High Court and seniority list was published in 1987, they were ignored as they were working as ad hoc resulting in pushing up AMEOS who were junior to them.
AMEOs were granted seniority from the date of appointment in MLC service whereas similar benefit was denied to AMEOT as they were working as ad hoc.
To remove this irritant Tribunal directed that they shall be deemed to be holding regular posts.
Officers working since 1964 without any flaw could not be treated as ad hoc.
In any case once review DPCs were held it was incumbent on it to include these persons and if necessary to evaluate their services or get it evaluated by appropriate authority regu larise them and then determine seniority.
But in ignoring them in 1987 even when they had become member of MLC service was arbitrary and unjustified.
Two other objections one about delay and other about nonjoinder raised, again, by Union Govt. may be examined.
As regards former suffice it to say that the occasion to ap proach Tribunal arose when seniority of respondents was disturbed and panels recommended in 1972 and 1979 were redrawn in 1987 and seniority were refixed in Group 'B ' with effect from March 1968.
Therefore objection of claim being slate or belated cannot be accepted.
Nor there is any sub stance in defect due to non joinder of parties.
Objection stands answered by the ratio in Col. D.D. Joshi & Others vs Union of India & Others, ; ; where it was held that it was not necessary to implead all parties if chal lenge was to validity of rule.
As regards Ranga Reddy & Others vs State of Andhra Pradesh., relied on behalf of the appellant in support of the submis sion that the order passed by the Tribunal was vitiated in the absence of interested parties cannot be accepted as some of those officers who were directly affected or were immedi ately likely to be effected got themselves impleaded before the Tribunal.
Therefore, the defect, if any, stood removed.
Moreover the Tribunal protected interests of all 613 these persons who were working at present by directing that they shall not be disturbed.
Non impleadment of these who may be effected in future could not render the petition vulnerable.
In the result both the appeals fail and are dismissed.
The respondents shall be entitled to costs from Union of India.
Y. Lal Appeals dismissed.
[/INST]A commercial vessel which arrived at Paradip Port was rummaged by the Customs Officers and contraband goods worth more than Rs.1,40,000 were recovered.
The officers also detained the vessel by issue of a notice to the Master of the vessel with a copy to the second respondent, the Deputy Conservator of Paradip Port Trust.
At the instant of the second respondent and another, the vessel was shifted to the reads far away from the port in the high sea.
This resulted in the interruption of the rummaging operation and the vessel being left unguarded for about 38 hours, during which period it was alleged that the contraband goods disappeared from the vessel.
The second respondent was asked to show cause as to why he should not be proceeded against and why penalty should not he imposed on him, under Sections 117 and 151 of the .
In his reply, the second respondent took the plea that the Customs and Central Excise Authorities had no jurisdiction to initiate proceedings against him and that section 151 of the Act was not attracted.
Rejecting his plea, the Collector imposed a penalty of Rs.1,000 under section 117 of the Act.
The said order of the Collector was challenged in the High Court by way of writ petitions.
The High Court allowed the writ petitions and quashed the penalty.
This appeal, by special leave, is against the orders of the High Court quashing the penalty, On behalf of the appellant it was contended that Section 133 706 creates an offence and also prescribes a penalty, and though the section s referable to Court in so far as prosecution and punishment is concerned for the offence, there would be no bar to deal with that offence under section 117 of the Act.
It was also contended that there would be no double jeopardy if in an appropriate case one has been prosecuted and punished under the sections in Chapter XVI of the Act and also sub jected to penalty under the provisions other than those in Chapter XVI if the Act for offences including those in Chapter XVI of the Act.
Allowing the appeal, HELD: 1.
Where the same Act or event constitutes an offence ruder Chapter XVI and at the same time constitutes a contravention or abetment of contravention of any of the provisions of the Act or failure 0 perform any duty pre scribed under the Act or amounts to noncompliance with any of the provisions of the Act, there will be possibility of prosecution and punishment under Chapter XVI of the Act and any other provision of law and the same time confiscation and penalty under Chapter XIV of the Act.
[710G H] 2.
In the instant case, the vessel could, therefore, lawfully be detained, rummaged and the goods suspected seized.
There may be cope for holding that there was inten tional obstruction on the part of he second respondent if the allegations are proved.
Where there was an order for seizure it would amount to obstruction under section 186 IPC if the goods were not allowed to be removed.
Obstruction is not confined to physical obstruction and it includes anything which makes it more difficult for the police or public servant to carry out their duties.
[711B; F] Santosh Kumar vs State. ; and Hinchliffe vs sheldon, [1955] 1 WLR 1207, referred to.
In the Collector 's order, though there was discussion of offence under section 133 and failure to perform duty under section 151, the order itself was passed ex facie under the provi sions of section 117 of the Act.
There is no discussion in the High Court 's order on this aspect of the matter and here is no indication as to whether this was urged or not before the High Court.
Further, since the second respondent is not represented before his Court, the said order is set aside and the cases remanded to the High Court for fresh disposal in accordance with law in the light of the observations made hereinabove after giving opportunities to the parties or making their submissions on the basis of the evidence al ready on record.
[711H; 712A B]
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<s>[INST] Summarize the judgementiminal Appeal No. 193 of 1967.
Appeal by special leave from the judgment and order dated March 7, 1967 of the Bombay High Court, Nagpur Bench in Criminal Revision Application No. 306 of 1966.
271 G.N. Dikshit, S.K. Bisaria appellant.and R.N. Sachthey, for the appellant.
H.R. Khanna and S.P. Nayar, for the respondent.
The Judgment of the Court was delivered by Sikri, J.
This Court granted special leave to appeal in this case limited to the following two points: (1 ) whether the confiscation of the foodgrains in the house of the appellant was legal; and (2) whether r. 141 (2) of the Defence of India Rules: 1962 is not ultra vires the: Defence of India Act.
The facts relevant to the first point are as follows: Certain shpherds belonging to a wandering tribe were apprehended by the police one night while they were carrying 12 baggages containing juar on the backs of 12 horses.
On being questioned they informed the police that they had purchased all this quantity of juar from the appellant at the rate of 78 paise per kg.
On this information the police raided the houses of the appellant and further found 34 quintals and 63 kgs of juar.
The appellant had two house.s at Janephal and in one house 3 quintals and 48 kgs while in the other house 31 quintals and 18 kgs.
of juar was found, which was seized by the police.
The last declaration of stock which had been given by the appellant was on June 5, 1965.
The appellant was tried and convicted o.n three courts by the Judicial Magistrate, First Class, Mehkar.
He was convicted under r. 125(9), Defence of India Rules, for contravening cl.
4(b) of the Maharashtra Jwar (Restrictions on purchases and sale and control of movement) Order, 1964, and sentenced to rigorous imprisonment for six months and fine of Rs. 500/ , in default further rigorous imprisonment for six months.
He was further convicted for contravening Buldana District Price Control Order, 1965, and sentenced to rigorous imprisonment for six months and fine of Rs. 500/ , in default rigorous imprisonment for six months.
He was also convicted for contravenvening section 3 of the Maharashtra Declaration of Stock Order, 1964, and sentenced to rigorous imprisonment for six months and fine of Rs. 500/ in default further rigorous imprisonment for six months.
The sentences of imprisonment on each count were directed to run concurrently.
The Magistrate further ordered that the maddemal before the Court be confiscated to the Government.
The appellant appealed unsuccessfully to the Sessions Judge.
He then filed a revision before the High Court.
The High Court 272 set aside the conviction and sentence passed on the appellant in respect of contravention of cl. 3 of the Maharashtra Foodgrains (Declaration of Stocks) (Second) Order, 1964.
But while maintaining the conviction for the other two charges the High Court modified the sentences passed on the appellant and instead of the sentences awarded by the lower courts sentenced the accused to imprisonment already undergone and fine of Rs. 1,000 on .each of the two.
counts.
The High Court observed: "The order regarding forfeiture of the juar seized from the house of the accused is maintained.
The juar seized from the: house in the occupation of Ratanlal will however be released." The learned counsel contends that the High Court having set aside the conviction and sentence in respect of contravention of cl. 3 of the Maharashtra Foodgrains (Declaration of Stocks) (Second) Order, 1964, it was illegal to maintain the order regarding forfeiture of the Juar seized from the house of the appellant because, he says, the Maharashtra Jowar (Restriction .on Purchase and Sale and Control of Movement) Order, 1964, and the Buldana District Juar (Price Control) Order, 1965, did not contain any provision authorising the Court to forfeit the juar, the subject matter of the contravention of these two orders.
Rule 125(9) provides: "(a) If any person contravenes any provision of this rule o.r any order made: under this rule, he shall be Punishable with imprisonment for a term which may extend to three years, or with fine, or with both: Provided (b) If any order made under this rule so provides, any court trying a contravention of the order may direct that any property in respect of which the Court is satisfied that the order has been contravened shall be forfeited to Government." The learned counsel for the State has not been able to point out any provision in the two orders mentioned above containing any provision contemplated in r. 125(9)(b).
The only provision contained in the Maharashtra Jowar (Restriction on Purchase 'and Sale and Control of Movement) Order, 1964, is regarding forfeiture to the Government of packages, coverings or receptacles in which any stocks of jowar are found.
This obviously does not enable the Court to order forfeiture of Juar.
273 The Buldana District Juar (Price Control) Order, 1965, it is true, authorises the Collector to seize stocks but does not enable the Court to.
forfeit the juar.
In the result we hold that the order of the High Court maintaining the order of forfeiture is allegal and liable to be set aside.
On the second point the learned counsel for the appellant contends that r. 141(2) of the Defence of India Rules, 1962, is ultra vires because it lays down a rule of evidence contrary to.
the law contained in section 114 of the Indian Evidence Act.
Rule 141 (2) is in the following terms: "141 (2) If in the course of any judicial proceedings a question arises whether a person was duly informed of an order made in pursuance: of these Rules, compliance with sub rule (1 ), or where the order was notified, the notification of the order shall be conclusive proof that he was so.
informed; but a failure to comply with sub rule ( 1 ) (i) shall not preclude proof by other means that he had information of the order, (ii) shall not affect the validity of the order.
Section 3 of the Defence of India Act enables the Central Government, by notification in the Official Gazette, to make such rules as appear to be necessary,.
or expedient for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services essential to the life of the community.
Sub section
(2) mentions various matters on which rules can be made, but this is without prejudice to the generality of the powers conferred by sub section
It seems to us that r. 141 (2) is within the powers conferred by section 3 (1 ) of the.
Defence of India Act.
The .fact that the rule is contrary to an existing act does not matter because section 43 of the Defence of India Act provides that "the provisions of this Act or any rule made thereunder or any order made under any such rule shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act.
" The section contemplates that the rules may be: inconsistent with existing legislation but by virtue of section 43, if otherwise.
valid, they would have effect notwithstanding that they are inconsistent with existing legislation.
We use the words "if otherwise valid" because the rules must fall within the powers given under section 3 (1).
Section 3 gives very wide powers.
It seems to us that r. 141 (2) falls within section 3 because it is essential 274 to the scheme of the Defence of India Rules.
The Rules must necessarily provide for the publication of orders made under the Rules and they must also provide for proof in judicial proceedings of the fact of publication.
The learned counsel has not been able to show us any case in which a rule like r. 141(2) has been challenged, much less declared ultra vires, both in England and in India.
In the result the appeal is partly allowed, the order of the High Court maintaining the forfeiture of the seized stock of juar set aside and the rest of the order of the High Court maintained.
Y.P. Appeal partly allowed.
[/INST]The appellants, among others applied to the Regional Transport Authority for permits to operate a direct bus service on.
a route in Meerut District, U.P., which had no direct passenger bus service.
After hearing the appellants and those who opposed them, the Regional Transport Authority was satisfied that there was no sufficient demand for such a direct service, and therefore, there was no justification for opening the proposed new route.
The. applications of "the appellants and other applicants were therefore rejected.
The Appellate Tribunal reversed the order of the Regional Transport Authority and granted permits to the three appellants.
The respondents therefore filed writ petitions in the High Court for quashing the order of the Tribunal contending that no appeal against the order of the Regional Transport Authority lay under section 64(a) of the and that consequently, the Tribunal had No. jurisdiction to entertain such appeals, and grant permits to the appellants.
A Single Bench dismissed the petitions but the Division Bench held that no appeal against the order of the Regional transport Authority lay under section 64(a) and accordingly, allowed the writ petitions and quashed the Tribunal 's order.
On appeal to this Court, HELD: The appeal must be dismissed.
The decisions of this Court clearly lay down that the R.T.A. has first to make "a general order" as stated in Abdul Mateen 's case under section 47 (3) as to the number of permits necessary for a new route and he cannot exceed that limit while he is at the next stage when he considers under section 48 read with, section 56(7) as to.
who among the applicants should be granted the permit or permits.
Such a 'general order ' limiting the number of permits presupposes that he has come to a decision that the new route either proposed by him or by an applicant or applicants is necessary in the public interest.
If the order 'as to the number of permits is a 'general order ' passed under section 47(3) with which the individual applications are not concerned and is anterior to the stage under section 48 when applications of the individual operators are taken into, consideration, and therefore is not appealable under section 64 (a) it must follow a fortiori that the decision as to whether the new route is necessary or not is equally 'a general order ' arrived at either earlier or contemporaneously with the decision as to the number of permits.
If the latter order is not appealable, it cannot be that the former i.e. the decision whether the new route is necessary or not, is not an equally 'general order ' with which individual applications are not concerned and can appeal against it under section 64 (a).
However, the powers of the R.T.A. in connection with the decision as to whether a proposed route should be opened or not are not un 244 limited and unbridled.
The power is subject to the revisional power of the State Government under section 64 A. [250 E 251 C] Abdul Mateen vs
R.K. Pandev ; ; M/s Java Ram Motor Service vs
section Rajarathinam C.A. 95 of 1965, dec.
on October 27, 1967; R. Obliswami Naidu vs The Addl.
State Transort Appellate Tribunal Madras C.A. 1426 of 19 '68, dec.
on Feb. 17, 1969, applied.
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<s>[INST] Summarize the judgementAppeal Nos.4538 39 of 1991.
From the Judgment and Order dated 23.3.1990 of the Hyderabad High Court in C.C.A. Nos. 54 & 55 of 1987.
Ashok K.Gupta for the Appellant.
Ms. Suruchi Agrawal and T.V.S.N.Chari for the Respondents The Judgment of the Court was delivered by RANGANATH MISRA, CJ.
Special leave granted.
By notifica tion dated 12th January, 1973, under Section 4(1) of the Land Acquisition Act, 1894 as modifiednby Notification of 27th July, 1978, 26 acres and 26 gunthas of land located within the Hyderabad District was notified for acquisition for the Bhagyanagar Urban Development Authority.
A similar notification was published on 14th June, 1979 for acquisi tion of two acres and 29 gunthas.
The Land Acquisition Officer made his award for both the properties on 10 th June, 1982 fixing the market value at Rs. 42,000 per acre with five per cent deduction towards development cost.
Being dissatisfied with the awards passed by Land Acquisition Officer, a reference was sought and made under section 18 of the Act.
The Claimants demanded compensation at the rate of Rs. 200 per square yard.
The Civil Court fixed the market value at Rs.200 per sq.yd.
as demanded but directed deduc tion of 20 per cent towards development charges.
The Land Acquisition Officer carried appeals against the escalation of compensation and the present appellants preferred cross objections.
The High Court reassessed the entire evidence and came to hold.
"Today the position of the acquired lands is altogether different.
It is common knowledge that the prices started soaring high from 1980 onwards and this part of Hyderabad, namely, 377 Gaddiannaram started developing from 1980 and today it is undoubtedly one of the important areas in Hyderabad.
But we must consider the position as it stood in 1978 and 1979.
Taking all the circumstances into account, we think it reasonable to fix the market value at Rs. 3 lakhs per acre.
The Civil Court had given a deduction of 20 per cent towards development charges.
The learned Advocate General contended that deduction should be enhanced to 33 1/3 per cent.
We do not think that any interference is called for in this regard.
The lands are abutting the highway.
Evidence shows that there are roads on three sides.
Hence.
we maintain the deduction of 20 per cent and if so done, the market value comes to Rs.2,40,000 which works out at Rs. 50 per sq.yd.
The Trial Court has awarded Rs.200 per sq.yd with a deduction of 20 per cent which comes to Rs. 160 per sq.yd.
We are unable to sustain the order of the Court below on any justifiable grounds.
We accordingly set aside the judgment and decree and determine the market value at the rate of Rs.50 per sq.yd . " It is against this deduction in compensation that the claimants have come to this court in appeal.
The Collector had adopted a deduction of five per cent.
The referee court adopted the deduction at 20 per cent and the High Court rejecting the claim of the Advocate General that deduction should be one third put it at one fifth.
We find that the High Court did not go by the percentage of deduction.
In fact, according to the High Court and particu larly as the portion we have extracted above would show the appropriate market value per square yard was Rs. 50 and if a 20 per cent deduction from out of Rs. 3 lakhs per acre was accepted, it worked out that way.
The Judgment of the High Court gives us the impression that in fixing the compensa tion.
the High Court did not go by the percentage of deduc tion but kept in view the market value of the land at the time of the notification under section 4(1) of the Act.
There is clear material and the High Court has accepted it that price went up in the area after 1980.
The notifications are within a range of a year or two from that time.
There fore, the valuation after 1980 is not the guideline.
Having looked into the material accepted by the High Court, we are not in a position to disturb the finding recorded by the High Court.
The appeals are accordingly dismissed.
No costs.
R.P. Appeals dismissed.
[/INST]The appellant a public limited company was manufacturing Rosin, Turpentine and Rosin Derivatives and was carrying on business at Bari Brahmana and Jammu Tawi.
On 20.1.1981, the Assessing Authority assessed the appellant company under the , for the year ending 30.6.80.
On 22.2.1981 an assessment order under section 10 of the Act was made.
A penalty order was also made.
The appellants challenged the order of the Assessing Authority before the High Court filing Writ Petition No. 87 of 1987, contending that they were exempt from payment of sales tax under the and the Jammu & Kashmir General Sales Tax Act, 1962, on the finished goods produced by them for a period of five years commencing from 8th November, 1979, in terms of the Government Orders No. 159 Ind.
dated 26.3.1971 as amended by Government Order No. 414 Ind.
dated 25th August, 1971 read with Section 8(2A) of the ; that the Government represented and announced a package of incentives for large and medium scale industries grant of exemption from sales tax both on the raw materials purchased by the industries and the sale of their finished products; and that the Government was estopped from charging sales tax.
The High Court dismissed the Writ Petition holding that the two Government Orders were only declarations of an intention to exempt 181 from payment of sales tax and that they were not exemption notifications under section 5 of the General Sales Tax Act and that the appellants failed to prove the factual foundation for invoking the principle of promissory estoppel.
Against the High Court 's decision by special leave C.A. No. 2309 of 1989 was filed by the appellant company.
C.A. No. 2310 of 1989 The appellant company had filed a miscellaneous petition, after the judgement in the W.P.No. 87 of 1987 (the writ petition of the High Court against which C.A.No. 2309 of 1989 was filed) for permission to file reply affidavit on the ground of that the documents produced at the time of hearing needed explanation.
The High Court dismissed the Misc.
Petition as it was belated and the judgement in the writ petition was delivered relying on the materials placed on record.
C.C.No.
3148 50 of 1989 The appellant partnership firm was manufacturing Vanaspati Ghee.
It was assessed for the period from 2.9.1981 till 30.9.1981 under the Jammu & Kashmir General Sales Tax Act.
The appellants moved the High Court in a writ petition (W.P.No. 52 of 1982) to quash the assessment order, contending that the Government order 159 Ind.
dated 26.3.1971 as amended by Government Order 414 Ind.
dated 25.8.1971 exempted the sales of the finished product of Vanaspati Ghee from sales tax and that the Government was estopped from collecting tax.
When the Writ Petition (W.P.No. 52 of 1982) was pending an assessment order was made on 14.11.1984 for the assessment year ending 30th September, 1982, including the period 2nd September to 30th September, 1981 (which was questioned in W.P.No. 52 of 1982).
The assessment order dated 14.11.1984 was challenged by the assessees appellants in the writ Petition No. 822 of 1984.
During the pendency of the writ petitions certain other Government Orders were passed and certain assessment orders for the subse 182 quent periods were passed and those were questioned in the Writ Petition No. 711 of 1987.
The assessees contended that Government Order No. 159 Ind. dated 26.3.1971 and Government Order 414 Ind.
dated 25.8.1971 were exemption orders referable to section 5 of the Jammu & Kashmir General Sales Tax Act.
The respondents contended that the said Government orders were not exemption orders section 5 of the General Sales Tax Act and that there was not factual foundation for the plea of promissory estoppel.
The High Court dismissed all the three writ petitions by a common order, against which Civil Appeals 3148 50 of 1989 were filed.
C.A.No. 3151 of 1989 : The appellant assessee filed a writ petition praying to quash certain notices issued under section 14 of the and for a declaration that the Vanaspati Ghee manufactured by them was exempt from payment of tax upto January, 1992, i.e., for a period of 10 years from the date from which they started their commercial production as per the Government Order 159 Ind.
dated 26.3.1971 and Government Order No. 414 Ind.
dated 25th August 1971 as orders exempting their goods from sales tax under Section 5 of the Jammu & Kashmir General Sales Tax Act.
The Writ Petition was also dismissed against which C.A.No. 3151 of 1989 was filed by special leave.
The assessee contended that the exemption from payment of tax was extended from 5 years to 10 years and the Government was bound to give the exemption for 10 years on the ground of promissory estoppel; that SRO 448 which superseded the exemption granted under the Govt.
Orders was ultra vires and that the SRO 448 had no effect of superseding exemption granted under the G.O. 159 and 414; and that the exemption for 5 years granted under the Government Orders could not be withdrawn on the ground that SRO 80/82 was prospective in operation and also on the ground of promissory estoppel.
The State contended that even if the sale of a particular commod 183 ity was exempted from payment of tax under the local Act, the dealer selling the same in inter state trade or commerce would be liable to pay Central Sales Tax under the provisions of Section 6(1A) of the ; that if Section 6(1A) of the was applicable to a particular transaction of sale, Section 8(2 A) of the General Sales Tax Act would not be applicable to that transaction; that the conditions that the industry should have been set up and commissioned subsequent to the Government Orders 159 and 414 and the commodity sold in order to claim the exemption under the Government Orders, should be those manufactured by that industry were the conditions or specified circumstances within the meaning of the Explanation and, therefore, the appellants in C.A.Nos.
2309, 2310/89 were not entitled to any exemption under Section 8(2 A) of the ; that the Government Orders were superseded by SRO 80/82 and Vanaspati Ghee was made liable to tax at the rate of 8 per cent; that the goods manufactured by the appellants in C.A.Nos.
2309, 2310/89 were also made taxable as falling under the residuary item at the rate of 8 per cent; that in the assessment order relating to Assessment Year 1981 82 for the period from 1.9.1981 to 30.8.1982 in the case of appellants in C.A. Nos.
3148 3150 of 1989 there was a finding that the assesses collected sales tax in respect of their sales turnover for which the exemption was now claimed and that under Section 8 B of the J&K General Sales Tax Act the said amount was refundable to the Government.
As the questions, arose in these appeals were common, appeals were heard together and allowing the appeals of the assessees by a common judgment, this court, HELD :1.
If power to do an act or act or pass an order can be traced to an enabling statutory provision, then often if that provisions is not specifically referred to, the act or order shall be deemed to have been done or made under the enabling provision.
[194D] 2.1 Normally in the case of grant of tax exemption as an incentive to industry the exemption orders have generally taken the form of Government Order rather than a notification.
But in the case of other exemptions though they are also under section 5 of the local Act (J&K General Sales Tax Act, 1962) they have taken the form of notification.
[194G H] 2.2 The pattern followed in Jammu & Kashmir is that in respect 184 of exemptions from payment of taxes following Cabinet decision on Policy matters and incentive they have taken the form of a Government order.
[194H 195A] 2.3 The Jammu & Kashmir General Sales Tax Act, 1962 itself makes a distinction requiring a notification to be made for certain purposes and the making of a Government order in respect of certain other purposes.
Since there is no form prescribed in this behalf, if the particular order in effect is an exemption order, whether it takes the form of an order or notification makes no difference.
[194F G] 2.4 From the publicity given to the Government Orders 159 and 414 by the Government, while inviting entrepreneurs to establish industries in Jammu & Kashmir and certain other communications to the parties, it is be understood that the Government orders 159 and 414 were treated as exemption orders satisfy all the requirements of the provisions of section 5 of the local Act.
[195B C, 194E] 2.5 Even as an order of exemption the appellant will have to show that he had set up the industry in conformity with the intent of 1971 order and entitled in terms thereof to the exemption in respect of the goods manufactured by him.
But that is not to say that after he establishes those facts the Government will have to make a separate order of exemption in relation to him.
[201C D] 2.6 There is no prescribed form for granting exemption under section 5 of the Jammu & Kashmir General Sales Tax Act.
There is also no prohibition against reference to any other matter or matters in exemption orders under section 5 of the General Sales Tax Act.
If the incentives related also to other benefits or rights merely because they are included in the same Government Order does not make it any the less an exemption order so far as the exemption related to payment of sales tax.
[202C D] 2.7 The High Court was in error in thinking that the exemption order should be specific in favour of the appellant.
The exemption as can be seen from the provisions of section 5 of the Jammu & Kashmir General Sales Tax Act could be in respect of any class of dealers or any goods or class or description of goods.
There could be an exemption to an individual also but the power of exemption is not restricted to such cases alone.
It may refer to transactions of sale of a particular type of goods or class or description of goods or in respect of any class of 185 dealers or a combination of both.
[201B] 3.1 `Will be granted exemption ' has the same meaning as `will be exempted ' and does not in any way show that it requires a further follow up action.
[201G H] 3.2 The exemption is with reference to an industry which is to be established subsequent to the Government order.
Therefore in that sense both expressions mean the same.
[202A] 4.
The notification issued on the 3rd of June 1971 in SRO 214 under section 23 of the Jammu & Kashmir Urban Immovable Property Tax Act, 1962, amending the Immovable Property Tax Rules, 1962 by inserting Rules 20 A was subsequent to GO 159 Ind. dated 26.3.1971.
It was published on 25.3.1971 in the Government Gazette under section 23(1) for information of all persons likely to be affected thereby and any objection or suggestion which may be received in the Finance Department from any person with respect to the said draft before the said date will be considered by the Government.
It is by reason of the fact that this draft rule has been published calling for objection the GO 159 Ind. itself stated that the grant of immovable property tax exemption would be available "as admissible under the Urban Immovable Property Taxation Rules".
Thus on the day when the Government Order was made there was already the draft amendment rules, and, therefore, it could not be stated that the amendment was a follow up action in pursuance of the Government order.
The Government order refers to the draft and says as per the amendment they will be entitled to the exemption.
[202E 203B] 5.1 The only reference to 10 years was in the Finance Minister 's speech and in the Brochure dated September 1978.
The Brochure only lists the concession and incentives available generally.
It does not refer to any Government decision or Cabinet decision or any order of the Government.
[203G H] 5.2 The Finance Minister 's statement made in March 1978 only refers to a proposal to continue the grant of exemption from payment of sales tax for a period of 10 years.
This statement also is not unambiguous.
It may mean that the benefits under the Government Orders 159 and 414 may be continued for another 10 years without withdrawing the same.
This is merely a budget proposal which could 186 give rise to no right to the appellants.
As no decision order or notifications is produced extending the period of exemption in relation to sales tax it is not possible to consider the claim of the appellants for exemption for 10 years on the ground of promissory estoppel.
[204 B C] 6.1 The SRO No. 195 dated 31.3.1978 did not and could not supersede the exemption granted under the Government orders 159, 414.
[205D] 6.2 When it stated in the amending notification SRO 448 dated 22nd October, 1982 that vanaspati and edible oils are taxable at the point specified therein it only means that those vanaspati and edible oils which are not exempted are taxable at the points specified in the Schedule.
The Government order gave exemption only for five years from the date of commencement of the industry and those industries who had been manufacturing for more than that period and also those industries who were not entitled to the benefit of the said Government order would be liable to pay sales tax on the vanaspati manufactured by them and the said goods were liable to tax at the point specified in the Schedule.
[205F G] 7.1 In the scheme of levy of single point taxation, the Government could fix any point in the series of sales for the Government have fixed the sale by the dealer, that if the second sale, as the taxable point no exception can be taken.
In that sense no question of vires on the ground of lack of power would arise.
[205H 206A] 7.2 Under section 4(1) of Jammu & Kashmir General Sales Tax Act the goods are taxable only once, that is it could be taxed only at one point of sale.
The government orders 159 and 414 are exemption orders and exempt the sale by appellants of their manufactured products.
The exemption would not arise unless the goods are taxable at the point of their sale.
Thus the effect of exempting their sale is that the said goods manufactured by them could not be taxed at the second or subsequent sales also as that would offend section 4(1) which provides for single point levy.
In cases where there are no exemption orders and the State fixed the second or subsequnt sale as point of taxation the first or prior or subsequent sales are not exempted sales but are not taxable sales.
Therefore SRO 448 fixing he sale of vanaspati ghee by a dealer would not be applicable to vanaspati ghee manufactured by the appellants which are exempt under the Government orders.
[206B D] 187 7.3 The goods manufactured by the Appellants are exempt under Government Orders 159 and 414 and that exemption covers entire series of sales of that very goods.
[206D] 8.1 Under section 6(1) of the every dealer who sells goods in the course or inter state trade or commerce shall be liable to pay tax under that Act.
A sale of goods shall be deemed to take place in the course of inter state trade or commerce if the sale occasions the movement of goods from one state to another or if effected by a transfer of documents of title to the goods during their movement from one State to another.
[207D E] 8.2 In view of the provisions of Section 15 the State Law can impose tax on sale of declared goods only at a rate not exceeding four per cent of the sale price and such tax also shall not be levied at more than one stage.
If the tax has been levied under the State Law on declared goods and such goods are sold in the course of inter state trade and tax has been paid under the Central Sales Tax the Law levied under the State law shall be reimbursed to the person making such sale in the course of inter state trade.
[208C E] 8.3 Section 8(2 A) of the does not have any over riding effect on the scheme of taxation relating to inter State sale of declared goods.
There is also scope for the applicability of section 6(1 A) of the when the inter state sale takes place when the goods are in transit and is effected by transfer of documents of title to the goods during their movement from one State to another.
[209B C] 8.4 Only certain cases which would have been covered by section 6(1 A) of the have been carved out for the purpose of exemption subject to the applicability of section 8(2 A) of the .
Section 6(1 A) of the has not become otiose by reason of inclusion of that section in the non obstante clause in section 8(2 A).
Both provisions, therefore, operate and they should not be read so as to nullify the effect of one another.
[209C E] 9.
The facts which the dealer had to prove to get the benefit of the Government orders are intended only to identify the dealer and the goods in respect of which the exemption is sought and they are not conditions or specifications of circumstances relating to the turnover sought 188 to be exempted from payment of tax within the meaning of those provisions.
The specified circumstances and the specified conditions referred to in the explanation should relate to the transaction of sale of the commodity and not identification of the dealer or the commodity in respect of which the exemption is claimed.
The conditions relating to identity of the goods and the dealer are always there in every exemption and that cannot be put as a condition of sale.
[210D F] 10.1.
SRO 80/82 was prospective in operation.
The Government seems to have been following as a pattern that is in the case of incentives to industries the exemption orders had taken the form of a Government order.
Government orders 159 and 414 were also in pursuance of a Cabinet decision.
SRO 80/82 though a Government notification under the Business Rules it is issued by the Ministry concerned.
In the circumstances there is also a serious doubt whether the said incentives could have been superseded by the SRO 80/82.
[213H 214B] 10.2.
In the case of a grant of exemption without specifying any period for which the exemption is available the Government could withdraw the same at any time.
The appellants acting on the representations of the Government had set up their industries.
Therefore they are entitled to claim the benefit of the exemption for the entire period of five years calculated as per the terms of the Government orders, even if it were to be held that SRO 80/82 superseded the earlier exemption orders.
[216D E, 216G 217A] 11.
Since the assessment orders were regular assessment orders on the ground that their sales are taxable sales the question of applicability of Section 8B of the local Act does not arise.
That question arises in view of the finding that their sales turnover are exempt but still under section 8B of the Local Act, they are liable to refund any money collected "by way of tax".
[217G H] Pournami Oil Mills & Ors.
vs State of Kerala & Anr.
, [1986] Supp.
SCC 728; Bakul Oil Industries & Anr.
vs State of Gujrat & Anr.
, ; ; Assistant Commissioner of Commercial Taxes (Asstt), Dharwar & Ors.
vs Dharmendra Trading Company and Ors., ; ; Indian Aluminium Cables Ltd. & Anr.
vs State of Haryana, 38 STC 108; Industrial Cables India Ltd. vs Assessing Authority, [1986] Supp.
SCC 695; International Cotton Corporation (P) Ltd. vs Commercial Tax Officer & Ors., 35 STC 1; referred to. 189
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<s>[INST] Summarize the judgementivil Appeals Nos.
1357 58 of 1975.
(Appeals by special leave from the judgment and order dated 4 2 1974 of the Orissa High Court in O.J.C. No. 410/1971).
M.K. Ramamurthi and B. Parthasarathi, for the appellants.
Gobind Das, N.V. Rama Das and G. Narayana Rao, for respondents 1 8 in CA 1357/75.
There was a private college known by the name of Khallikote College.
This is an institution which grew out of a school established 775 in 1856.
The management had to meet with financial crisis in the past and obtained financial help in the shape of liberal endowment under a trust deed from the then zamindar of Khallikote.
The institution, it is stated, became one of the premier colleges in the town of Behram pur, Ganjam District, Orissa.
The College was at first affiliated to the Andhra University at Waltair and thereafter to the Utkal University, and since 1967 it has been affiliated to the Behrampur University.
The Government of Orissa took over the management of the College on and from March 9, 1971, and a formal agreement was executed between the managing committee of the College and the Governor of the State.
The College was taken over by the Government in pursuance of the unanimous resolution of the managing committee of February 18, 1970, and the transfer to the Government was of all the assets of the College but without any liability.
The managing committee continued to be liable for the outstanding liabilities, if any, of the College for which Government was not liable.
The College after the take over was administered as a Government College.
The eight writ petitioners in the High Court (Respond ents herein) were working as Readers in different faculties in the said College on the date of the aforesaid transfer in the scale of pay Rs.510 860/ whereas the Government scale for Readers was Rs.600 1000/ .
On the date of take over, namely, March 9, 1971, each of the respondents was drawing a salary somewhere less than Rs.600/ ; three of them less by only Rs.30/ .
The material particulars of the ten Readers of the College who were all earlier in private employment, includ ing the eight Respondents, are as follows (Annexure I, Volume 1I of the Paper Book): Sl.
Name Date of Date of Date of Confirmed Pay as on No. Birth 1st promo as 9 3 1971 appoint tion (date of ment take over) 1.Sri N.N.Swamy 8 3 34 21 7 58 1 12 68 Reader Rs.570 2.Sri N.Satapathy 6 9 33 July '59 27 1 70 Reader Rs.540 3.Sri P.Haridas 10 3 36 25 10 61 25 10 69 Lecturer Rs.540 4.
Sri J.J. Rao 16 3 36 7 7 59 1 7 68 Reader Rs.540 5.
Sri K.C. Samantra 5 7 70 Lecturer All the posts are permanent 6.
Sri G.J. Chineswar Rao 30 9 31 3 9 57 1 10 67 Reader Rs.570 7.
Sri Ch.
Chandra Sekhar Patro .
1 7 35 1 8 58 1 1 57 Reader Rs.570 8.
Sri Narayana Behera 1 10 37 2 8 62 13 9 70 Lecturer Rs.510 9.
Sri T.K.Satyan murty 14 9 27 1 7 49 4 5 59 Reader Rs.660 10.Sri V.S.R. Gupta 28 12 30 1 7 52 4 9 69 Lecturer Rs.600 776 It will appear that five Respondents out of eight were confirmed as Readers prior to the take over.
Three Respond ents were confirmed as Lecturers but were promoted as Read ers prior to the transfer of the College.
The last two Readers in the list who. were lucky to draw salary of the amount of Rs.660/ and Rs.600/ respectively as on the date of take over, were treated differently by the Government from the eight Respondents on the sole ground that they were drawing as Reader salary of more than Rs.600/ .
It is rather poignant that the tenth Reader in the list was only a confirmed Lecturer whereas, as already shown, five of the Respondents were confirmed Readers although drawing salary less than Rs.600/ On July 30, 1970, the Government prescribed qualifica tions for appointment as a Reader by a Circular of that date addressed to the Director of Public Instructions (Higher Education) Orissa, which appears to supersede the earlier circulars on the subject.
It was stated in that circular that the "Government have been pleased to order that follow ing principles shall hence forward be followed in the ap pointment Readers, namely, (a) no officer who has not had at least 8 years of teaching experience as a Lecturer would be eligible for consideration; and (b) the post of Reader shall originally be filled up by promotion subject to the satisfactory performance and conduct of the officer as a lecturer".
On March 23, 1971, the Government issued a circular con taining conditions governing taking over the services of the teaching staff of the College.
Paras 4 and 5 of that circu lar, which are material for our purpose, may be quoted: "4.
The State Government shall offer ad hoc appointment to all staff inposition on the date of take over subject to para 5, and sub para (d) of this paragraph for a period not exceeding six months in each case, treat ing all such staff as fresh entrants to Gov ernment service.
The final absorption of such staff in Government service shall be subject to the following conditions: x x x x x (b) That after termination of services of surplus personnel, the cases of staff re tained in Class I and Class II shall be referred to the Orissa Public Service Commis sion for determination of their suitability to hold posts in Class I or II as the case may be.
The services of those who are not found suitable by the P.S.C. (Public Service Commis sion) shall also, be terminated by giving one month 's notice in each ' case.
Those found suitable by the Commission shall be finally absorbed in respective Trade of the O.E.S. (Orissa Education Service) for which they are found 777 suitable.
It is hereby clarified that at the time of reference to the P.S.C. for determina tion of suitability for appointment as Read ers, cases of Lecturers of Government College, eligible for appointment as Readers shall also be simultaneously referred to the P.S.C. for consideration against those posts.
X X X X (c) While making reference to the P.S.C . . cases of those ad hoc Readers who would have been normally, entitled to pay of less than Rs.600/ per month on 9 3 71 by application of the formula "minimum of the scale of pay of Readers in force in the Col leges on the date of their appointment as such by the Ex Managing Committee plus one.
incre ment in that scale for every completed year of service upto 9 3 71" would be referred for determination of their suitability for absorp tion as Lecturers only.
X X X X 5.
Ad hoc appointment shall be issued to all Professors and such of the Readers in position, who on the date of take over were in receipt of pay of Rs.600/ per month or more, in the scale of pay Rs.600 1000/ against posts of Readers.
Readers who on the date of take over were in receipt of pay of less than Rs.600/ per month and all lectur ers in position on that date shall be given ad hoc appointment against the post of lectur ers in the scale of Rs.260 780/ with effect from the date of take over".
X X X X Basing on the aforesaid provisions of the above circular the Director of Public Instructions sent on April 20, 1971, to each of the Respondents appointment letters whereby they were appointed as Lecturers in Class II temporarily on ad hoc basis for a period of six months with effect from the forenoon of March 9, 1971, or till the appointment is made in consultation with the Orissa Public Service ' Commission, whichever is earlier; subject to verification of character and antecedents and production of medical fitness certificate.
Appointments were, thus, offered to.
the Respondents under the terms and conditions of take over which have been already extracted.
The grievance of the Respondents is that although they had all the requisite qualifications for the appointment as Reader and they were all holding the posts of Reader before the take over and five of them were even confirmed Readers but since under the aforesaid terms of the take over they were drawing a salary of less than Rs.600/ on the date of take over.
their names were not referred to the Public 778 Service Commission for consideration of their ' suitability for appointment as Readers in the Government College.
It is not disputed that they are otherwise educationally and by experience qualified for the post of Reader.
The High Court found that the requirement of eight years of teaching experience, as mentioned above, which is needed for appoint ment as a Reader is more than amply fulfilled by each of the Respondents.
The High Court accepted the Writ Petitions and held that the Respondents were entitled to consideration by the Public Service Commission for appointment as Read ers ' and hence these appeals by the State which are con fined only to the above question.
It is submitted by Mr. Ramamurthi on behalf of the appellants that the High Court erred in directing the Gov ernment to take into account, as experience, the service of the Respondents while they were in the private college since, according to him, the necessary qualification is eight years experience in Class II, Orissa Education Serv ice (O.E.S.).
This submission is based on the Orissa Educa tion Service Class I (Recruitment to the College Branch) Rules, 1971, issued on July 19, 1971, produced for the first time in this Court.
It is submitted that since the Respond ents have not completed eight years of service in the O.E.S. Class II (Lecturer 's grade) in Government service, they are not entitled to be considered by the Public Service Commission for appointment as Readers.
We are unable to accept this submission based on these Rules.
These Rules of July 19, 1971, were not produced in the High Court and the reason is obvious that these were not relied upon by the State in connection with the appointment of the Respondents as Readers after the College had been taken over by the Government on March 9, 1971.
The argument has, therefore, to be supported on the intrinsic strength of the circular of March 23, 1971.
Apart from this, there is a stronger reason not to.
entertain this submission at this stage.
Even in the Special Leave Petition filed by the State on July 15, 1974, there was no mention whatsoever about the aforesaid Rules and necessarily no ground was taken in the Petition on the basis of these Rules.
Being conscious of this position Mr. Ramamurthi filed a Civil Miscellaneous Petition No. 4069 of 1976 before this Court on April 30, 1976, to urge this additional ground.
After hearing Mr. Ramamurthi we rejected this prayer for urging the additional ground by such a belated application when the High Court had no oppor tunity to consider the question.
The only question, therefore, which requires decision in these appeals is _whether the Respondents were denied equal opportunity under Article 16 of the Constitution in the matter of appointment as Readers under the Government in the manner laid down in the circular of March 23, 1971.
The following facts are admitted: The Respondents and two others, namely, T.K. Satyan murty (No. 9) and V.S.R. Gupta (No. 10) in the list (Annex ure I) were all Readers in the private College, each.
having put in more than eight 779 years of service there as a Lecturer.
T. K. Satyanmurty was promoted as Reader on 4 5 1969 and was drawing Rs.660/ on the date of taking over.
V.S.R. Gupta was promoted as Reader on 4 9 1969 and was drawing Rs.600/ , the minimum according to the aforesaid Government circular, on the date of taking over.
He was not even confirmed as a Reader but was only confirmed as a Lecturer.
Amongst the Respond ents, N.N. Swamy (No. 1), N. Satapathy (No. 2), J.J. Rao (No. 4), G.J. Chineswar Rao (No. o) and Ch.
Chandra Sekhar Patro (No. 7) m the list (Annexure 1) were confirmed as Readers and four of them were promoted even earlier than No. 9 and No. 10.
It is thus clear that the condition of draw ing of Rs.600/ or more on the date of taking over, which has been laid down in the said circular as a particular qualification for eligibility for appointment as Reader and later for consideration of their suitability by the Public Service Commission for appointment as Reader, is arbitrary and discriminatory.
This condition has no nexus, whatev er, with the object underlying the qualification test in an educational institution having regard to the most essential condition of intrinsic quality and efficiency of the teachers.
It is not unknown that private institutions generally have great handicaps in the matter of finance and oftener the teaching staff in a private college has not the same scales of pay and sometimes even has much lower scales than that of the Government colleges.
It is one thing to lay down appropriate educational and intelligibly relevant qualifications for certain posts in a college and also teaching experience of a specified duration but com plete ignoration, without valid reason, of the teaching experience of a lecturer in a private college, otherwise qualified, on the sole ground of drawing a particular amount of salary on a particular date cannot be countenanced.
T.K. Satyanmurty (No. 9) was promoted as a Reader while in the private college much later than the four of the Respond ents (Nos. 1, 4, 6 and 7 in Annexure I).
He happened to; draw Rs.660/ on the date of take over, while the Respond ents were drawing a little lower pay.
The former was pre ferred and given the ad hoc appointment of a Reader and was held as eligible for consideration by the Public Service Commission for appointment as Reader and the claims of the Respondents were ignored.
Thus even amongst the Readers in the private college, similarly situated, the only ground for ignoring the claims of the said Respondents was drawing of a lesser pay; even though it may be less by Rs.30/ , on March 9, 1971.
This ground for a most unreasonable differ entiation in picking and choosing from amongst the employees similarly situated on an absolutely artificial and irrele vant consideration results in denial of equal opportunity to the Respondents in the matter of employment under the Government under Article 16 of the Constitution.
It is well settled that under Article 16(1) of the Con stitution matters relating to employment not only mean the initial appointment but also include all matters relating to employment, whether prior or subsequent to the employment and also include promotion, (See The General Manager, South ern Railway vs Rangachari(1).
(1) ; 2 206SCI/77 780 Our attention was drawn to a decision of tiffs Court in Smt.
Juthika Bhattacharya vs The State of Madhya Pradesh and Others(1) on behalf of the appellants, wherefrom it was pointed out that Government could validly impose compara tively stringent qualifications for posts in schools taken over from private management, since persons there may be appointed without the requisite experience as needed in Government schools.
That case is entirely different from the present case.
There may be no difficulty in accepting the position that Government can screen the teachers at the time of fresh appointment in Government service after taking over any institution from private management.
The educa tional qualifications and teaching experience which may be insisted upon may be appropriately stringent having regard to the quality of education which Government intends to.
impart in the college after taking over the same from the private management.
If the quondam private employees in the College did not fulfil the qualifications, experience and other requisite conditions, they may not be eligible for appointment since Government may not undertake to take over all the employees by maintaining the billabong of a status quo ante.
Such a position, if taken by the Government, is consistent with implementation of a correct educational policy and will not incur the frown of Article 16 of the Constitution.
The question is entirely different when, as in the present case, the Respondents answering the test of educational qualifications, as well as, experience of teach ing in a recognised private college are discriminated amongst the very category of Readers on an irrational and illusory consideration.
Denial of an opportunity to.
these Respondents even for being considered for the post of Reader is clearly violative of Article 16 of the Constitution.
When a fairly well recognised institution, as in this case, run for more than a century, is completely taken over by the Government for management, it is not merely taking over the land and buildings, tables and chairs.
It has to tackle, at the same time, a human problem, that is to say, the fate of the teachers and the staff serving that institu tion.
The institution, with which we are concerned, was taken over, by consent, as a going educational concern and it goes without saying that it must be administered on sound lines having regard 'to quality, efficiency and progress in all respects.
It is understandable that the employees had to join the new service under the Government, for the first time, and so could be, in that sense, fresh entrants.
But to say that the teaching experience of the Readers in the private institution is completely effaced to the extent that they will not be even eligible, on the plea of absence of teaching experience in Government service, for consideration for appointment as Readers is a seriously grim issue.
We feel assured that such an argument had not been canvassed by the State in the High Court on the basis of the Rules of July 19, 1971, since these Rules came into force after the take over for which a separate circular had al ready been issued to take care of the special exigency.
Action under the Government circular of March 23, 1971, alone, was in controversy in the High Court.
The said circular took recognition of the service in the private college in the case of two (1) ; 781 Readers (Nos. 9 and 10 in Annexure 1).
The only differentia was, therefore, the salary drawn by the Readers on the date of take over.
That action based on the salary aspect under the said circular had to.
stand the test of Article 16 in the High Court, as well as, before us.
the argument in favour of complete erasion of the past teaching expe rience in the private college, first time presented before us, fails to take note of the distinction between eligibili ty and suitability.
Eight years ' teaching experience in a college and the fulfilment of other ' requisite qualifica tions make a person eligible for appointment .as a Reader, but whether he is suitable for selection for the post is an entirely different matter.
We are, therefore, clearly of opinion that all the Respond ents are eligible to be referred to.
the Public Service Commission for the post of Reader.
Their names shall be referred to the Commission, accordingly.
Whether they will be suitable for appointment us Readers will be a matter entirely for due and proper consideration of the Public Service Commission whose recommendations will be considered by the Government in the matter of final absorption.
The High Court was right in allowing the .above claim in the writ applications.
The appeals fail and are dismissed with costs.
M.R. Appeals dismissed.
[/INST]No question of infringement of any fundamental right under article 21 arises where the detention complained of is by a private person and not by, a State or under the authority or orders of a State, and the Supreme Court will not, therefore, entertain an application for a writ of have a corpus, under article 32 of the Constitution.
Consequently a petition under article 32 of the Constitution for a writ of habeas corpus founded on article 21 and directed against a father for alleged detention of his daughter does not lie.
A. K. Gopalan vs The State of Madras ([1950] S.C.R. 88) and P. D Shamdasani vs Central Bank of India ([1952] S.C.R. 391), relied on.
</s>
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<s>[INST] Summarize the judgementVIL Appeal No. 3717 of 1986.
From the Judgment and Order dated 12.9.1986 of the Gauhati High Court in Civil Rule No. 428 of 1986.
Ms. Lira Goswami and D.N. Mishra for the Appellant.
Shankar Ghosh, S.K. Hom Choudhary and S.K. Nandy for the Respondent.
The Judgment of the Court was delivered by PG NO 510 RAY, J.
The respondent, Rev. Fr.
Paul Petta was appointed as Principal of St. Anthony 's ' College by Salesian Provincial on April 16, 1982 and on the recommendation of the Governing Body of the College, the Director of Public Instruction, Meghalaya, Shillong accorded approval to his appointment with effect from 1st May, 1982.
St. Anthony 's College was established by Salesian Congregation, a Catholic religious Society of imparting general education.
It is a religious minority institution under Article 30 of the Constitution of India and it is receiving Government grants in aid since the scheme of deficit grant in aid colleges was intoduce by the government of Assam in 1959.
After creation of Meghalaya it has been grants in aid under the same system as adopted by th Government of Meghalaya.
By Memo No. EDN.
75/74/280 dated 4th November, 1976 the Government of Meghalaya, Education Department conveyed to the Director of Public Instucion, the sanction of the Government of Meghalaya to the implementation of the Instruction.
scales of pay, as indicated thereunder to all the deficit college teachers including the Principals, Professors in the State with effect from 1st April, 1975.
By Memo No. EDN> 75/74/51 dated December 7, 1979 the Government of Meghalaya laid down the procedure for appointment of Principals, Vice Principals and Lectuers and other staff in Religious Minority Colleges in the State with refernce to Article 30 of the Constitution.
Paragraph 1 which is relevant is quoted below: "In the matter of appointment of Principals and Vice Principals in the colleges belonging to th religious minorities, the governing Body of the College concerned shall select a Principal and Vice Principal from a panel of names submitted by th sponsoring Church Organisation concerned subjects to th condition that the educational qualifications of the persons selected shall be in accordance with the conditions laid down in the Government 's letter No. EDN/75/74/280 dated 4.11.76.
Other conditions in respect of age of super annuation etc.
shall be as prescribed by the State Government from time to time.
" The respondent after his appointment had been working as Principal of the College.
While working as such, differences arose between him and the church authorities more particularly the appellant Nos. 2,3 and 4 i.e. the President and the members of the Government Body of the College regarding certain matters relating to the management of the college.
PG NO 511 On December 14, 1985, Fr.
John Kalapura, SDB, the Appellant No. 2, President, Governing Body of St. Anthony 's College and Salesian Provincial sent a letter to the respondent intimating him of his transfer from the power of Principal of the College.
The letter states : "After due consultation with the Provincial Council I am transferring you from the post of Principal of St. Anthony 's College, Shillong and am appointing Rev. Fr. J. Kenny as Acting Principal of the same college with effect from 2 f. 12. 85.
Kindly hand over the charge to Rev. Fr. J. Kenny by 21st Dec. 1985.
" On receiving the said letter the respondent on that very day sent a letter to the appellant No. 2 stating that he had no authority to appoint or dismiss or transfer the Principal of the College as the Principal and Vice Principal in the College belonging to the minorities are to be selected by the Governing Body and to be approved by the Director of Public Institution in accordance with Government instructions mentioned in its letter dated December 7, 1979.
The respondent sent a letter to the Director of Public Instruction (in short D.P.l.) intimating that he had been removed from the Principalship of St. Anthony 's College by the appellant No. 2, the Salesian Provincial of Cauhati Province and Rev. Fr.
Kenny had been appointed as the Acting Principal and requested him to intimate if the Government has given any power to Sponsoring Authority for St. Anthony 's College in contravention of the Memo dated December 7, 1976.
The D.P.I. has informed the respondent by his letter dated 23rd December, L985 that "this office is not aware of any such power given to the Church Authority concerned".
The Salesian Provincial by its letter dated March 7, 1986, proposed the name of Fr. Stiphen Mavely as Principal of the said College.
The Governing Body at its meeting held on 17th March, 1986 resolved that Fr.
Stephen Mavely be appointed Principal cum Secretary of St. Anthony 's College with effect from March 10, 1986.
The said appointment was approved by D.P.l., Meghalaya with effect from 10th March, 1986.
The respondent filed a suit being T.S. No. l (T) of L986 in the Court of the Assistant District Commissioner with a prayer for temporary injunction.
An interim order of maintaining status quo was obtained.
But as in the meantime the office of the Principal was and taken possession of, the suit was withdrawn and a writ petition being Civil Rule No. PG NO 512 428 of 1986 was filed challenging that Salesian Provincial has no power to transfer the respondent, viz. the Principal of the College to Don Bosco Technical School, Maligaon, Gauhati.
The respondent was appointed as Principal of the said College by the Governing Body of the College with the approval of D.P.I. and so the Governing Body with the approval of D.P.I. can transfer him under the statutory rules.
It was also contended that the respondent acquired a satutory right to hold the post of Principal till his attaining the age of super annuation.
The purported order of transfer is illegal and without jurisdiction It has also been contended that the purported order of transfer tantamounts to removal of the respondent from the post of Principal and the said order being issued without recording any reason and without giving any opportunity to show cause to him is arbitrary, illegal and mala fide.
The purported order of transfer is thus violative of principles of natural justice and as such it is liable to be quashed.
An affidavit in opposition was filed on behalf of appellant Nos. 2, 3 and 4 denying that the administration and management of the said college including the appointment, discipline etc.
are governed by the Assam Aided College Management Rules.
1965, Assam Aided College Employees ' Rules, 1960 for appointment of Principals and Vice Principals and conditions of grants in aid aided colleges in 1956.
It has been stated that St. Anthony 's College is a minority institution and the Salesians Provincial is the only Competent Authority to make any appointment to the rank of Principal in the said College and no advertisement before making any appointment is necessary.
This relaxation of restriction in regard to Minority College availing of deficit grants in aid has been made by Memo dated December 7, 1979.
The petitioner is a member of the Salesian of Don Bosco and his appointment to the said post of Principal could never have been permanent.
As a priest he is transferable from time to time different institutions of the Society.
The Constitution of the Salesians of Don Bosco provides that such transfer is binding on the petitioner as a priest and a member of the Salesian Don Bosco.
The transfer of the petitioner and other priests are matters of normal routine as members of Salesian Society.
It has also been stated that any money drawn by a priest has to be given to the order of Salesian of Don bosco and no priest maintains any private fund.
It is the responsibility of the Salesian Society to look after the needs and requirements of any member of the community and is responsible for the upkeep of such members.
The petitioner has taken a vow of obedience when he was ordained as a priest and was admitted as a member of Don bosco.
The petition is liable to be dismissed as no statutory right of the petitioner has been violated.
PG NO 513 After hearing the learned counsels for the parties as well as considering the facts and circumstances the High Court held that the Governing Body of the College was not a Statutory Body.
The Court further held that: "To our mind there is violation of the principles of natural justice in dislodging the petitioner from his post of Principal without hearing him." The High Court further held that: "So long as the members of the Salesian Body obeyed the rules and regulation of the Body, accepted transfers in good spirit this Court would have nothing to do.
But if the petitioner having been appointed as Principal feels aggrieved that his transfer is not in accordance with the rules of the body and comes to the Court, this Court has to look and listen to him.
By appointing the petitioner as Principal of the College, the organisation has exposed the petitioner to the judicial gaze of the Court and if the petitioner makes grievances, it is for the Court to redress it." ". .
The petitioner was appointed by the Governing Body and that was subject to the approval of the D.P.I. There is no reason as to why his removal from the post of the Principal should not have been made by the Governing Body and subject to the approval of the D.P.l.
However, the College Governing Body has got no control over the School whereto the petitioner has been transferred.
" The High Court therefore made the rule absolute to the extent indicated in the directions quoted below: "We accordingly keep the impugned order in abeyance forthwith and direct the Governing Body of the College to give the petitioner an opportunity to show cause as to why he should not be transferred as stated in the impugned transfer order dated 14.12. 1985 (Annexure 10) and after hearing the petitioner on the cause shown, shall decide the matter of transfer within one month from receipt of this order, and act according to the decision so taken and in PG NO 514 conformity with the Government instructions (Annexure 8).
If the impugned order is revoked, the petitioner shall automatically be reinstated in his post of principal of the College, and shall be given all the emoluments and benefits thereof.
The Respondent No. 11 shall correspondingly cease to be Principal of the College, but shall not be disentitled to the pay and allowances for the services already rendered by him to the College prior to this date.
In case the Governing Body decides to give effect to the impugned transfer order it shall revive and the petitioner shall be free to pursue his remedies under the law.
In the interest of fair hearing and reasonable opportunity, we direct the Governing Body to make available to the petitioner all the records which he may need for the purpose of his defence; the petitioner shall, not, however function as Principal during the period of one month pending decision.
The decision shall be taken within a month from today.
" Aggrieved by the said order made in Civil Rule No. 428 of 1986, a special leave petition has been filed by the Governing Body and some of the members of the Governing Body of the College.
After hearing the learned counsel for the parties special leave was granted.
The St. Anthony 's College is admittedly a minority institution within the meaning of Article 30 of the Constitution and as such the Salesian Don Bosco Society is competent to administer the said college.
This College is getting deficit grants in aid from the Government of Meghalaya and the instructions contained in Memo No. EDN.
75/74/S1 issued by the Government of Meghalaya on 7th December, 1979 laying down the procedure of appointment of Principal, Vice Principal, Lecturers and other staff in religious minority colleges in the State will apply to this Institution.
The respondent who was a lecturer of St. Anthony 's College was sponsored by Salesian Provincial, the appellant No. 2 for appointment of Principal of the College and the Governing Body of the College recommended the same to the Director of Public Instruction, Meghalaya for approval as required under the above instructions.
The D.P.I. duly approved the appointment of the respondent, Rev. Fr. Paul Petta as Principal of the College with effect from May 1, 1982.
The appellant worked as Principal of St. Anthony 's College since the date of his appointment till the impugned order of transfer made by the appellant No. 2 Rev. Fr. John Kalapura as Salesian Provincial from the post of Principal of the said College to the post of Teacher, Don Bosco Technical School, Maligaon, Gauhati on December 21, PG NO 515 1985 without asking him to show cause against the order of transfer and without giving him any opportunity of hearing.
It has been urged that the respondent being ordained as a priest of the society has taken vow of servie to any post where he will be asked by the Society to work.
As a priest he was sponsored by the Church Authority for appointment as Principal and the Governing Body of the College also recommended his appointment as made by Salesian Provincial for approval.
The petitioner cannot have any grievance against the order of transfer as he has no statutory right to remain as Principal of the College.
It has also been contended by refering to certain Articles of Constitution of the Society of St. Francis de Sales that the respondent being ordained as priest of the Society took the vow of service and the Salesian Provincial can transfer him to serve in any of institutions of the Society as his service is transferable.
It has also been submitted that as a priest the respondent cannot keep any money with him and whatever salary he gets will have to be given to the Society which will look after him and meet his needs.
The respondent question the order of transfer.
The respondent so long as he to the order of transfer and complies with it, the court has nothing to do.
But if he does not comply with it and questions it before the Court, the Court will have to consider his grievances and to decide if the impugned order of transfer is legal and valid.
The respondent was appointed as Principal of St. Anthony 's College by the Governing Body of the College and the same was duly approved by the Director of Public Instruction, Meghalaya in accordance with the procedure laid down in the Government 's letter dated December 7, 1979.
The impugned order of transfer purports to transfer the respondent from the post of Principal of the College to the post Teacher in the Don Bosco Technical School at Maligaon within the State of Gauhati over which the Governing Body of St. Anthony College has no control.
This order of transfer has prejudicially affected the status of the respondent as Principal of St. Anthony 's College.
The main question that arises for consideration in this appeal is whether the Salesian Provincial, the appellant No. 2, is competent to transfer the petitioner who has been appointed as Principal of the College by the Governing Body of the College and approved by the D.P.I. as per Government instructions applicable to minority college.
There is no dispute that the respondent is a member of Salesian Don Bosco Society as a priest.
It is also not in dispute that as a priest of the society h was sponsored by the Church Authorities for the post of Principal of th College and the Governing Body of the College recommended to the D.P.I. for approval of his appointment as Principal of the College.
In such PG NO 516 circumstances it is required to be considered whether the Salesian Provincial has power to transfer him from the post of Principal of the College to the post of Teacher in a Technical School of the Society.
It is apparent from the aforesaid Government instructions that the Principal whose appointment has been duly approved by the D.P.I. can work as Principal in the minority college till he attains the age of super annuation as determined by the Government.
The impugned order of transfer in substance amounts to removal of the respondent from the post of Principal of the College.
It has been held by the High Court that the respondent has been condemned unheard as he was not given any opportunity to show cause for the purported order of transfer whih seriously prejudiced him.
The principles of natural justice and fair play mandate that in administrative actions the audi alterum partem rule is applicable and the person affected by the order to be given an opportunity of hearing against the purported order apart from the question whether the Assam Aided College Management Rules, l965 and Assam Aided College Employees ' Rules.
1965 are applicable to minority institutions.
We do not consider it necessary for the purposes of this appeal to make any observations on the question whether the Assam Aided College Management Rules, 1965 and Assam Aided College Employees ' Rules, 1960 are applicable to minority institutions or to consider the question whether the rules concerning the terms and conditions of appointment as well as prescribing qualification for appointment the post of lecturers and principals as well as prescribing condition for service are regulatory in nature and they do not contravene the fundamental right guaranteed under Article 31 of the Constitution to the minority institutions at has been observed in the case of Frank Anthony Public School Employees Association vs Union of India & Ors., [1987] I SCR 238.
It has been contended on behalf of the learned counsel for the appellants that the appellant No. 2, Salesian Provincial is the appointing authority of the respondent and as such he has the right to make the impugned order of transfer though there is nc, express provision conferring such power.
The case of Kutoor Vengayil Rayarappan Nayanar vs Kutoor Vengayil Valia Madhavi Amma and Ors., AIR 1950 (Federal Court) 140 has been cited at the bar for the proposition that the power to terminate flows naturally and as a necessary sequence from the power to create.
This proposition is a well established proposition but the question is whether the Salesian Provincial is the appointing authority of the respondent or the Governing 8body of the said College appointed the respondent and recommended his appointment for approval to the D.P.I. As stated earlier D.P.I. pursuant to the recommendation of the Governing Body approved the appointment of the respondent as PG NO 517 Principal of the said College.
So this question has to be gone into and determined by the Governing Body as has been directed by the order of the High Court.
It has been contended that the impugned order of transfer has seriously affected the status of the respondent as Principal of the College and this has been made by the appellant No. 2, Salesian Provincial without giving him any opportunity of hearing.
Now in so far as the Respondent is transferred in his capacity as priest from one division of the religious order to another the matter pertains to the internal management of the religious order and it is not justiciable.
However, in so far as the order of transfer has been made by the Governing Body of the St. Anthony 's College transferring the respondent from the post of Principal of the College to the post of Teacher of Don Bosco Technical School which is in another State the respondent can complain against it.
Since the respondent has not been given any opportunity of hearing against the purported order of transfer outside the State which seriously affected his status, the High Court, in the facts and circumstances of the case has directed the Governing Body of the College to give the respondent an opportunity to show cause against the impugned order of transfer dated 14.
1985 and to give him a hearing and decide the transfer matter in accordance with law.
The judgment and order passed by the High Court in the circumstances of the case cannot be faulted.
We therefore, uphold the order passed by the High Court and the appeal is dismissed with costs quantified at Ks.
5,000.
S.L. Appeal dismissed.
[/INST]The respondent had been appointed Principal of St. Anthony 's College by Salesian Provincial and his appointment had been approved by the Director of Public Instruction (D.P.I.) on the recommendation of the governing body of the College.
Due to differences between the Principal and the Church authorities, and particularly, the appellants Nos 2, 3 and 4, i.e. the President and the members of the governing body of the College, the appellant No. 2, the President of the governing body and the Salesian Provincial intimated to the respondent of his transfer from the post of Principal of the College.
The respondent contended that the appellant No. 2 had no authority to appoint or dismiss or transfer the Principal, as the Principal of the College belonging to minorities was to be selected by the governing body and to be approved by the D.P.I. in accordance with the government instructions contained in its Memo dated December 7, 1979.
But the Salesian Provincial proposed another person as Principal, to which the governing body agreed and his appointment was approved by the D.P.I.
The respondent filed a writ petition in the High Court, contending that the Salesian Provincial had no power to transfer him, as he had been appointed Principal by the governing body of the College with the approval of the D.P.I., and so the Governing Body with the approval1 of the D.P.I. could transfer him under the statutory rules.
and that the order of transfer, having been passed without giving him any opportunity to show cause, was arbitrary, illegal and mala fide and violative of the principle of natural justice.
The High Court held that there was no reason why the respondent 's removal from the post of Principal should not PG NO 507 PG NO 508 have been by the governing Body and subject to the approval of the D.P.I., and directed inter alia that the impugned order of transfer be kept in abeyance and that the governing body would give the respondent an opportunity to show cause why he should not be transferred as stated in the impugned transfer order, and decide the matter of transfer after hearing him.
Aggrieved by the order of the High Court, the governing body and others moved this Court by special leave.
It was contended by the appellants inter alia that the respondent could not have any grievance against the order of transfer as he had no statutory right to remain as Principal and that he, being ordained as priest according to the Articles of the constitution of the Society of St. Francis de Sales, the Salesian Provincial could transfer him to serve in any of the institutions of the Society as his service was transferable, and he could not question the transfer.
Dismissing the appeal, the Court, HElD: The St. Anthony 's College was a minority institution within the meaning of Article 30 of the Constitution, and the instructions contained in the Government Memo dated 7th December, 1979, laying down the procedure of appointment of Principal, vice Principal, etc, in religious minority Colleges in the State would apply to this Institution.
[514E F] The impugned order of transfer was passed without asking the respondent to show cause against the transfer and giving him an opportunity of hearing.
The impugned order purported to transfer the respondent from the post of Principal of the College to the post of Teacher in a school.
This order of transfer prejudicially affected the status of the respondent.
[5I5E F] The main question for consideration was whether the Salesian Provincial, appellant No. 2 was competent to transfer the respondent who had been appointed by the governing body of the college and approved by the D.P.I. as per the Government instructions applicable to a minority college.
[515G] According to the Government instructions aforesaid, the Principal whose appointment had been approved by the D.P.I., could work as Principal in the minority college till the age of superannuation as determined by the Government.
The impugned order of transfer amounted to removal of the respondent from the post of Principal.
The principles of natural justice and fair play mandate that in administrative actions the audi alteram partem rule is applicable; the person affected by the order had to be given an opportunity PG NO 509 of hearing against the purported order apart from the question whether the Assam Aided College Management Rules and Assam Aided College Employees, Rules are applicable to minority institutions.
[516B D] The appellants contended that Salesian Provincial, appellant No. 2, was the appointing authority of the respondent and as such he had the right to make the impugned order of transfer though there was no express provision conferring such a power.
[5l6F] The question was whether the Salesian Provincial was the appointing authority of the respondent, or the governing body of the College appointed the respondent and recommended his appointment for approval to the D.P.I.
The D.P.I. had approved the appointment of the respondent pursuant to the recommendation of the governing body.
So this question had to be gone into and determined by the governing body, as had been directed by the order of the High Court.
In so far as the respondent was transferred in his capacity as a priest from one division of the religious order to another, the matter pertained to the internal management of the religious order and it was not justiciable, but in so far as the order of transfer had been made, transferring the respondent from the post of Principal of the College to the post of Teacher of a school in another State, the respondent could complain against it.
Since the respondent had not been given an opportunity of hearing against the purported transfer which seriously affected his status, judgment of the High Court which directed the governing body to give the respondent an opportunity to show cause against the impugned order of transfer and to give him a hearing and decide the transfer matter in accordance with law, could not be faulted.
[516G H; 517A D]
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<s>[INST] Summarize the judgementiminal Appeal No. 97 of 1964.
Appeal by special leave from the judgment and order dated January 29, 1964 of the Madhya Pradesh High Court (Gwalior Bench) in Criminal Revision No. 5 of 1963.
I. N. Shroff, for the appellant.
R. L. Anand and section N. Anand, for the respondents.
474 The Judgment of the Court was delivered by Sikri, J.
This appeal by special leave is directed against the judgment of the Madhya Pradesh High Court (Gwalior Bench) in a Criminal Revision filed by M/s. Azad Bharat Finance Company, one of the respondents in this appeal.
The revision arose out of the following facts.
On May 3, 1961, truck No. M.P.E. 1548, while it was parked at the bus station, Guna, was searched by the Excise Sub Inspector and he found contraband opium weighing about three seers in it.
Five persons were challaned for the alleged illegal possession of contraband opium and for its transport, under sections 9A and 9B of the Opitum Act (1 of 1878) as modified by the Opium (Madhya Bharat Amendment) Act, 1955, hereinafter referred to as the Madhya Bharat Act.
Harbhajan Singh, one of the accused, is alleged to have absconded, and, therefore, he was tried separately later on.
The Additional District Magistrate, Guna, convicted three persons and acquitted one person.
Regarding the truck, he ordered that the final orders regarding the disposal of the truck would be passed later, on the conclusion of the trial of Harbhajan Singh.
It may be Mentioned that Harbhajan Singh had taken this truck.
under a hire purchase agreement from M/s. Azad Bharat Finance Co. and he Was not present in or near the truck when the contraband opium was taken possession of by the Excise Officer.
On May 28, 1962, M/s. Azad Bharat Finance Co, applied in the Court of Shri M. C. Bohre, in which the trial of Harbhajan Singh was going on.
for the release of the truck.
On September 7. 1962.
Harbhajan Singh was acquitted by the Magistrate but he ordered that the truck be confiscated to the State.
The Magistrate was of the opinion that section 11 of the Madhya Bharat Act showed ,Clearly that the truck in which the opium was carried had to be forfeited in all circumstances.
He observed: "By the use of the word "shall" this Court was ,compelled that the truck be seized, may be there was the hand of the owner in it or not and neither there is any provision that the truck owner had the knowledge or not of the opium being carried.
" Both Harbhajan Singh and M/s. Azad Bharat Finance Co. filed revisions in the Court of the Sessions Judge.
The Sessions Judge also held that the word "shall" in section 11(d) was mandatory and not directory.
He observed: "Though it is correct that the truck was not used for carrying opium with the knowledge or connivance of the owner but section 11 (d) as applicable in this state does not give discretion to the Court in not ordering the confiscation of the conveyance used for carrying contraband opium.
" 475 M/s. Azad Bharat Finance Co. filed a revision in the High Court.
The High Court held as follows: "The word "shall" occurring in Sec.
11 of the M.P. Opium Act means "may" and that it confers discretion on the court to confiscate the conveyance provided it belongs to the offender.
But where it is not so, and, the owner of the truck has neither authorised the offender to transport opium, nor is there any reason to believe that the owner knew that his vehicle was likely to be used for transporting contraband opium, the conveyance should not be confiscated because confiscation in such circumstances would be tantamount to punishing one, who has not committed any offence under the Opium Act.
" The learned counsel for the appellant, Mr. Shroff, contends that the Opium (Madhya Bharat Amendment) Act, 1955 (15 of 1955) which amended the Opium Act, 1878, deliberately employed a different phraseology with the intention of making it obligatory on a Court to confiscate a vehicle in which contraband opium had been transported.
He points out that in the Opium Act, 1878, in section 11, the.
relevant words Ate as follows: " section 11 Confiscation of opium.
In any case in which an offence under section 9 has been committed, The vessels, packages and covering in which any opium liable to confiscation under this section is found, and the other contents (if any) of the vessel or package in which such opium may be concealed, and the animals and conveyances used in carrying it, shall likewise be liable to confiscation.
" He stresses the words "liable to confiscation" which according to him and certain authorities clearly give a discretion to the Court whether to confiscate the vehicle or not.
In the Madhya Bharat Amendment Act the section providing for confiscation is as follows: "section 11.
In any case in which an offence under Sections 9, 9A, 9B, 9C, 9D, 9E, 9F and 9G has been committed, the property detailed herein below shall be confiscated: (d)the receptacles, packages and coverings in which any opium liable to confiscation under this Section is found, and the other contents (if any) of the receptacle or package in which such opium may be concealed, and the animals, carts, vessels, rafts and conveyances used in carrying it.
" In our opinion, the High Court was correct in reading section 11 of the Madhya Bharat Act as permissive and not obligatory.
It is well settled that the use of the word "shall" does not always 476 mean that the enactment is obligatory or mandatory, it depends upon the context in which the word "shall" occurs and the other circumstances.
Three considerations are relevant in construing section 1 1.
First, it is not denied by Mr. Shroff that it would be unjust to confiscate the truck of a person if he has no knowledge whatsoever that the truck was being used for transporting opium.
Suppose a person steals a truck and then uses it for transporting contraband opium.
According to Mr. Shroff, the truck would have to be confiscated.
It is well recognised that if a statute leads to absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence.
(Vide Tirath Singh vs Bachittar Singh)(1).
Secondly, it is a penal statute and it should, if possible, be construed in such a way that a person who has not committed or abetted any offence should not be visited with a penalty.
Thirdly, if the meaning suggested by Mr. Shroff is given, s.11 (d) of the Madhya Bharat Act may have to be struck down as imposing unreasonable restrictions under article 19 of the Constitution.
Bearing all these considerations in mind, we consider that section II of the Madhya Bharat Act is not obligatory and it is for the Court to consider in each case whether the vehicle in which the contraband opium is found or is being transported should be confiscated or not, having regard to all the circumstances of the case '.
Mr. Shroff then contends that if the matter is discretionary.
the High Court should not have interfered in the discretion exercised by the learned Sessions Judge.
But apart from the question that this point was not raised before the High Court, both the Magistrate and the Sessions Judge ordered confiscation of the truck on the ground that they had no option in the matter.
Mr. Shroff then raises the point that M/s. Azad Bharat Finance Co. was a third party in the case and was not entitled to apply for setting aside the order of confiscation or request for the, return of the truck.
This point was not raised before the High Court and, therefore, cannot be allowed to be raised at this stage.
In the result the appeal fails and is dismissed.
Appeal dismissed.
(1) ; at 464.
[/INST]The Madras Estates (Abolition and Conversion into Ryotwari) Act, (Act XXVI of 1948) was passed by the Provincial Legislature of Madras functioning under the Government of India Act, 1935 and it received the assent of the Governor*General of India on the 2nd of April, 1949.
After the advent of the Constitution, the Act was reserved for the certification of the President and it was certified on the 12th of April, 1950: Held, that in view of the provisions of article 31(6) of the Constitution the validity of the Act could not be challenged on the ground that it contravened the provisions of section 299(2) of the Government of India Act, 1935.
Shankari Prasad Singh Deo vs Union of India ([1952] S.C.R. 89), The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh ([1952] S.C.R. 889) and Narayan Deo vs The State of Orissa ([1954] S.C.R. 1) referred to.
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<s>[INST] Summarize the judgementCivil Appeal Nos.
2040 2042 of 1987 From the Judgment and order dated 11.2.1986 of the Central Administrative Tribunal, New Delhi in Appln.
Registration No. 4, 9 and 10 of 1985 Shanti Bhushan, K.R. Nagaraja, R.S. Hegde and Jayant Bhushan for the Appellants.
V.C. Mahajan, C.V. Subba Rao, A. Subba Rao and T.S. Sundrarajan in person for the Respondents.
The Judgment of the Court was delivered by RAY, J.
In these appeals under special leave the only question that falls for consideration is whether the service rule requiring 8 years of approved service as Section officer both for the direct recruits as well as for promotees for being eligible for consideration for promotion to the Grade I Post in Central Secretariat Service is arbitrary being in contravention of Articles 14 and 16 of the Constitution of India.
The matrix of the case is that the appellants along with one Rajiv Kalsi made four applications under section 19 of the challenging the vires of proviso to sub rule 2 of Rule 12 of Central Secretariate Service (C.S.S.), 1962 as amended by Notification No. 5/8/80 CS.
I dated 29th December, 1984 prescribing 8 years of approved service as Section officer as condition of eligibility for being considered for promotion to Grade I Post in C.S.S.
The appellants, Miss Prabha Devi and Shri Rajiv Kalsi were recruited directly through examination held by Union Public Service Commis 151 sion in 1978 as Section officers.
The appellants Shri G.S. Grewal and Shri Surjit Singh were recruited through examination held by Union Public Service Commission in 1980 as Section officers.
These direct recruits had been appointed in substantive vacancies of Section officers in accordance with the quota reserved for direct recruits by the service rules.
The inter se seniority of the direct recruits and the promotees is fixed in accordance with the quota and rota system.
The appellants are seniors to the promotees in accordance with the said quota and rota Rule.
The promotion to Grade I post of C.S.S. Rules is made in accordance with the provisions of sub rule 2 of rule 12 of the said Rules.
The proviso to sub rule 2 of rule 12 of C.S.S. Rules, 1962 was originally to the following effect: "Provided that if any person appointed to the Section officers ' Grade before the prescribed date is considered for promotion to Grade I in accordance with the provisions of this sub rule, all persons senior to him in that grade before the prescribed date shall also be considered notwithstanding that they may not have rendered l0 years ' approved service in the grade.
" According to this rule the direct recruits were eligible for consideration for promotion to Grade I in C.S.S. even though they have not rendered 10 years ' service when promotee Section officers junior to them are considered for promotion to Grade I. The promotee Section officers had to render 10 years ' approved service as Section officer before being considered for promotion to Grade I.
This proviso to sub rule (2) of Rule 12 was substituted by the following proviso with effect from July 31, 1972: "Provided further that if any person appointed to the Section officers ' Grade is considered for promotion to Grade I under this sub rule, all persons senior to him in that grade shall also be considered notwithstanding that they may not have rendered 10 years ' approved service in that grade.
" The proviso to sub rule (2) of rule 12 was again substituted by the following proviso with effect from February 23, 1978: "Provided further that if any person appointed to the Section officers ' Grade is considered for promotion to Grade I under this sub rule, all persons senior to him in Section Officers ' Grade who have rendered not less than six years ' 152 approved service in that Grade, shall also be considered notwithstanding that they may not have rendered 10 years ' approved service in that Grade; provided that the aforesaid condition of six years ' approved service shall not apply to a person belonging to the Scheduled Castes or the Scheduled Tribes." Thus according to this proviso to sub rule (2) of rule 12 a direct recruit Section officer who has rendered six years ' approved service in that grade was eligible for consideration for promotion to Grade I whereas a promotee Section officer would have to render ten years ' approved service in the grade of Section officer before being eligible for consideration for promotion.
In 1979 the substantive part of sub rule (2) of rule 12 was amended to provide eight years ' approved service in the Section officers ' Grade as against ten years approved service for eligibility for promotion to Grade I of C.S.S.
The third proviso of sub rule (2) of rule 12 was further substituted by the following proviso by Notification dated December 29, 1984: "Provided further that if any person appointed to the Section officers ' Grade is considered for promotion to Grade I under this sub rule, all persons senior to him in Section officers ' Grade, belonging to the Scheduled Castes or the Scheduled Tribes who have rendered not less than 4 years ' approved service in that grade, shall also be considered for promotion.
This amended rule enjoins that a directly recruited Section officer has to render 8 years ' approved service in the grade of Section officer before being eligible for consideration for promotion to Grade I.
The only exception made in this rule is with regard to Section officers belonging to the Scheduled Castes or Scheduled Tribes who shall have to render only four years approved service in that grade in order to qualify themselves for being considered for promotion to the said Grade I.
This condition of eligibility as introduced by the 1984 amendment of the third proviso of sub rule (2) of rule 12 has been questioned in the petitions before the Central Administrative Tribunal which after hearing the parties dismissed the applications by a common judgment holding inter alia that neither the amendment of February, 1978 nor the amendment of December, 1984 made in the proviso to sub rule (2) of rule 12 of the C.S.S. Rules, 1962 is discriminatory or arbitrary or 153 unreasonable so as to be declared ultra vires of Articles 14 and 16 of the Constitution of India.
It has been further held that the amended rule of December, 1984 is valid, just and equitable and no exception can he taken to it.
Aggrieved by the said order these three appeals on special leave have been preferred before this Court.
Mr. Shanti Bhushan, learned counsel appearing on behalf of the appellants has advanced three fold submissions before this Court.
The first submission is that the impugned amendment made in third proviso of sub rule (2) of rule 12 of C.S.S. Rules purports to entrench upon the prospects of the directly recruited Section officers for being considered for promotion to Grade I in as much as they are left out of the zone of consideration while their juniors i.e. the promotee Section officers are eligible for being considered for promotion to Grade I.
This condition of eligibility has no nexus to suitability for promotion to the post and as such this is in violation of the equality clause in Article 16 of the Constitution of India.
It has been submitted that any rule framed by the Government must be subject to the Fundamental Rights guaranteed by the Articles 14 and 16 of the Constitution of India.
Seniority of the direct recruits entitles them for consideration for promotion to the higher post while their juniors i.e. promotee Section officers are being considered for promotion to the higher post.
The purpose of the seniority in service is that the senior will be considered for promotion before those who are junior to them in the service.
Of course, a senior incumbent may be considered not suitable for promotion.
It has been submitted that the condition of eligibility as laid down in the said rule has no reference to suitability for promotion to the post and as such it is arbitrary and so void.
It has been submitted in this connection that prior to 1978 directly recruited Section officers having rendered 3 4 years of service in that grade had been promoted to Grade I and they had duly performed their duties.
Some of them have rendered their service in the promoted post very efficiently and they have earned remarks such as "very meritorious and outstanding" from the Department.
There is nothing to show that the promoted direct recruits were proved inefficient in discharging their duties and responsibilities of the higher post.
Mr. Shanti Bhushan furhter submitted that even in accordance with the provisions of sub rule (2) of rule 12 as amended in 1978 direct recruit Section officers after having rendered six years ' approved service in the grade had been considered for promotion and were promoted to Grade I.
This system worked out very satisfactorily and 154 the direct recruit Section officers who were promoted to Grade I post performed their duties attached to the higher post duly and satisfactorily.
The amendment of the eligibility qualification in 1984 providing a longer period of service as S.O. is, therefore, arbitrary and inequitable.
There is no rationale behind this amendment which works to the serious prejudice of the direct recruit Section officers for being considered for promotion to Grade I of the C.S.S. Service even though the promotee Section officers junior to them are being considered for promotion.
It has been secondly contended that the rule of determination of seniority on quota rota basis in the grade of Section officers having been held valid and not arbitrary by this Court in the case of H.V. Pardasani and ors.
vs Union of India and Ors., , the condition of eligibility introduced by the 1984 amendment of sub rule (2) of rule 12 is wholly unjust and arbitrary as it excludes direct recruit Section officers from the zone of consideration for promotion even though their juniors having put in eight years ' approved service as Section officers are eligible for consideration for promotion.
It has been submitted that the effect of the amendment is to neutralise and negative the decision of this Court which held that the rules of seniority on the basis of quota rota basis are unexceptionable.
It has been lastly contended that at any rate the promotee Section officers form a very small portion of the officers promoted to the Grade I Post and as such elimination of the direct recruit Section officers from the zone of consideration for promotion will not have any appreciable effect in as much as it will not obviate the frustration of the promotee Section officers for not being promoted to the higher post.
It has also been submitted that it is unjust and arbitrary to prevent the senior Section officers from being considered for promotion by enhancing the period of service from six years to eight years to be rendered in the grade of Section officer.
Mr. T.S. Sundara Rajan, a promotee Section officer, Respondent No. 2 has submitted that the appellants who are directly recruited Section officers on the result of examination held by the Union Public Service Commission in 1978 and 1980 against substantive vacancies, have become senior to the promotee Section officers on the basis of the quota reserved for direct recruits even though the promotee Section officers have rendered more than thirteen years ' service as Section officers.
This Fixation of seniority has no reference to the length of service.
The inter se seniority between the direct recruits and the promotee Section officers being determined on the basis of the 155 quota, the promotee Section officers even though they have been A promoted to the post of Section officers and have rendered service for a considerable period have become juniors to them in service and were not considered for promotion even.
These promotee Section officers like the Respondent No. 2 have not been considered for promotion in spite of their rendering service as such for more than thirteen years whereas the direct recruit Section officers who were appointed much later were considered and promoted purely on the ground of seniority.
This has created frustration in the minds of the promotees.
To obviate this the Government after due consideration of all aspect has by Notification dated December 29, 1984 amended the proviso to sub rule (2) of rule 12 of C.S.S. Rules prescribing an uniform eligibility of rendering eight years ' approved service as Section officers by both the direct recruit Section officers and the promotee Section Officers for being considered for promotion to Grade I (Under Secretary).
The said amendment, it has been submitted, is neither arbitrary nor unjust.
It has been further submitted that the promotee Section officers if given promotion will render their service duly and efficiently as has been rendered by the direct recruit Section officers promoted to Grade I.
According to the C.S.S. Rules, 1962, the substantive vacancies of Section officers are manned by direct recruits and promotees and a quota of one fifth of the total substantive vacancies has been reserved to be filled up by direct recruits.
The remaining substantive vacancies of Section officers are filled up by appointment of persons included in the select list i.e. by promotion.
The inter se seniority between the direct recruits and promotees is determined on the basis of the quota rota rule.
The direct recruits on their appointment against substantive vacancies become senior to the promotees.
This Court in the case of H.V. Pardasani and ors.
vs Union of India and Ors.
(supra) considered the question of the validity of rule providing for fixation of seniority between the direct recruits and promotees in the grade of Section officer on the basis of quota reserved for direct recruits and held that the prescription of quota becomes necessary to work out a scheme constituting a service manned by both the direct recruits as well as promotees.
Such a scheme is unexceptionable and seniority based upon the rota is also not open to attack.
The scheme does not appear to be arbitrary and the rules and regulations to give effect to the scheme are not ultra vires either Article 14 or Article 16 of the Constitution.
Therefore, the inter se seniority of direct recruit and promotee Section officers on the basis of 156 quota rota rules has been held to be valid.
This does not mean that the A direct recruits who are senior to the promotees are entitled to be considered for promotion to a higher post even though they do not fulfil the eligibility qualification specified in the rule framed by the rule making authority.
The rule making authority by the amendment made in 1984 has brought in an uniform eligibility qualification of eight years ' approved service to be rendered by the Section officers both promotees and direct recruits before coming within the Zone of consideration for promotion to Grade I.
Thus it treats all Section officers equally and there is no discrimination between the Section officers.
It has been submitted that this rule is arbitrary and unreasonable as it prescribes a certain minimum service in a lower post for promotion to a higher post on the ground that it has no nexus to suitability for holding the higher post.
This submission in our considered opinion, cannot be sustained in as much as experience over certain number of years in service and also due performance of the duties and responsibilities attached to the post of Section officer is very relevant and as such prescribing such an eligibility qualification has nexus to the suitability for the promoted post.
The directly recruited Section officers are not totally excluded from the zone of consideration for promotion.
They will be considered like the promotee Section officer as soon as they have rendered eight years ' approved service as Section officer.
The Tribunal has held that: "The qualifications for any post are prescribed having regard to the nature of the post and the duties and responsibilities attached to it.
For due discharge of duties attached to a post, academic excellence alone may not be sufficient.
Factors like experience over certain number of years in service and holding a post of a certain level are relevant.
That gives them the opportunity to deal with several files, handle different situations, tackle varied problems, extract work from subordinates of varying capabilities and serve under superiors with differing styles of functioning.
They acquire knowledge of men and matters and the necessary acumen to deal with issues arising from time to time.
Academic brilliance and excellent performance at the competitive examinations by themselves cannot wholly substitute experience.
They can only supplement.
However brilliant a person may be, he needs experience such as can be gathered only by discharging the duties and responsibilities attached to a post.
If recruitment to a post is by way of promotion, the minimum 157 number of years one should serve in the lower post would have to be prescribed.
Valuable experience gained in service, better equips a person to shoulder higher responsibilities and man the superior post.
Period spent in discharge of duties of a post has nexus to.
the object of enlisting experienced officers of proven merit with consistent good record over sufficiently long period to man the higher posts by way of promotion.
" The 1984 amendment of the rules providing an eligibility condition of rendering eight years ' approved service as section officer for coming within the zone of consideration for promotion to Grade I Post of C.S.S. is not at all arbitrary and unreasonable as it prescribes a minimum period of eight years ' of service as Section officer both for direct recruits and promotees as a condition of eligibility for consideration for promotion to the higher post.
This rule is, therefore, not violative of Articles 14 and 16 of the Constitution of India.
The rule making authority is competent to frame rules laying down eligibility condition for promotion to a higher post.
When such an eligibility condition has been laid down by service rules, it cannot be said that a direct recruit who is senior to the promotees is not required to comply with the eligibility condition and he is entitled to be considered for promotion to the higher post merely on the basis of his seniority.
The amended rule in question has specified a period of eight years ' approved service in the grade of Section officer as a condition of eligibility for being considered for promotion to Grade I post of C.S.S.
This rule is equally applicable to both the direct recruit Section officers as well as the promotee Section officers.
The submission that a senior Section officer has a right to be considered for promotion to Grade I post when his juniors who have fulfilled the eligibility condition are being considered for promotion to the higher post, Grade I, is wholly unsustainable.
The prescribing of an eligibility condition for entitlement for consideration for promotion is within the competence of the rule making authority.
This eligibility condition has to be fulfilled by the Section officers including senior direct recruits in order to be eligible for being considered for promotion.
When qualifications for appointment to a post in a particular cadre are prescribed, the same have to be satisfied before a person can be considered for appointment.
Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the relevant rules.
A person must be eligible for promotion having regard to the qualifications prescribed for the 158 post before he can be considered for promotion.
Seniority will be relevant only amongst persons eligible.
Seniority cannot be substituted for eligibility nor it can over ride it in the matter of promotion to the next higher post.
The rule in question which prescribes an uniform period of qualified service cannot be said to be arbitrary or unjust violative of Articles 14 or 16 of the Constitution.
It has been rightly held by the Tribunal: "When certain length of service in a particular cadre can validly be prescribed and is so prescribed, unless a person possesses that qualification, he cannot be considered eligible for appointment.
There is no law which lays down that a senior in service would automatically be eligible for promotion.
Seniority by itself does not outweight experience.
" It has also been observed: "In any event, the appropriate Rule making Authority is the best judge in this regard.
The Rule making Authority is certainly competent to amend the Rule and extend the period from 6 years to 8 years so as to make the direct recruits more experienced and suitable for the higher post.
That is a matter for the Rule making Authority; the Tribunal cannot sit in judgment over the opinion of the Rule making Authority.
No Court or Tribunal can substitute its own view in a matter such as this.
Such a Rule framed by a competent Authority cannot be struck down unless it is shown to be violative of any Fundamental Right guaranteed to a citizen under the Constitution.
" We do not find any infirmity in the above findings arrived at by the Tribunal.
In the premises aforesaid we hold that the third proviso to sub rule 2 of Rule 12 of Central Secretariat Service Rules, 1962 as amended by Notification No. 5/8/80 CS.
I. dated 29th December, 1984 is not ultra vires of Articles 14 and 16 of the Constitution.
The judgment and order of the Central Administrative Tribunal is hereby affirmed and the appeals are dismissed without costs.
G.N. Appeals dismissed.
[/INST]% The appellants are direct recruit Section officers and were appointed in substantive vacancies of Section officers in accordance with the quota reserved for direct recruits.
The inter se seniority of the direct recruits and promotees is fixed in accordance with the quota and rota system.
According to the C.S.S. Rules, 1962, the substantive vacancies of Section officers are manned by direct recruits and promotees and a quota of one fifth of the substantive vacancies has been reserved to be filled up by direct recruits.
The remaining substantive vacancies of Section officers are to be filled up by appointment of persons included in the select list i.e. by promotion.
The direct recruits on their appointment against substantive vacancies become senior to the promotees, as is in the present case.
The promotion of Section officers to Grade I post of C.S.S. Rules is made in accordance with the provisions of sub rule 2 of rule 12 of the said Rules framed in 1962.
According to this rule the direct recruits were eligible for promotion to Grade I in C.S.S. even though they have not rendered 10 years service, when promotee Section officers junior to them are considered for promotion to Grade l.
The promotee Section officers had to render 10 years ' approved service as Section officer before being considered for promotion to Grade I.
This rule had been 148 amended from time to time, the last of which was in 1984 by way of Notification No. 5/9/80 CS.
I dated 29th December, 1984 which prescribed 8 years of approved service as Section officer as condition of eligibility for being considered for promotion to Grade I post in C.S.S.
This amendment was challenged before the Central Administrative Tribunal which dismissed the applications, holding that the amended rule is valid, just and equitable and no exception can be taken to it, and that it is not ultra vires of Articles 14 and 16 of the Constitution.
Aggrieved by the said order three appeals have been preferred before this Court, by way of special leave.
It was contended that the amendment purports to entrench upon the prospects of the directly recruited Section officers for being considered for promotion to Grade l in as much as they are left out of the zone of consideration while their juniors i.e. the promotee Section officers are eligible for being considered for promotion to Grade I.
This condition of eligibility has no nexus to suitability for promotion to the post and as such is in violation of the equality clause in Article 16 of the Constitution of India.
It was contended that for purposes of seniority in service the senior will be considered for promotion before those who are junior to them in service, and that the condition of eligibility as laid down in the said rule has no reference to suitability for promotion to the post and as such it is arbitrary and so void.
The system prior to the amendment worked out satisfactorily and the direct recruit Section officers who were promoted to Grade I post performed their duties attached to the higher post duly and satisfactorily, and therefore the amendment is arbitrary and inequitable, and that this amendment works out to the serious prejudice of the direct recruit Section officers.
It was submitted that the effect of the amendment is to neutralise and negative the decision of this Court in H.V. Pardasani & Ors.
vs Union of India & Ors., which held that the rules of seniority on the basis of quota rota basis are unexceptionable.
On behalf of the promotee Section officers it was contended that the inter se seniority between direct recruit Section officers and promotee Section officers is fixed in accordance with the quota rota rule and thus has no reference to the length of service.
The promotee Section officers have not been considered for promotion m spite of their rendering service as such for more than 13 years, whereas the direct recruit 149 Section officers who were appointed much later were considered and promoted purely on the ground of seniority.
This has created frustration in the minds of the promotees and in order to obviate this, the Government has amended the proviso and that the amendment is neither arbitrary nor unjust.
Dismissing the appeals, this Court, ^ HELD: 1.
The rule in question which prescribes on uniform period of qualified service cannot be said to be arbitrary or unjust or violative of Articles 14 or 16 of the Constitution.
The rule making authority, by the amendment made in 1984, has brought in an uniform eligibility qualification of 8 years ' approved service to be rendered by the Section officers both promotees and direct recruits before coming within the zone of consideration for promotion to Grade I.
Thus it treats all Section officers equally and there is no discrimination between the Section officers.
The directly recruited Section officers are not totally excluded from the zone of consideration for promotion.
They will be considered like the promotee Section officers as soon as they have rendered eight years ' approved service as Section officers.
The eligibility conditions imposed has a nexus to the object sought to be achieved, viz. enlisting experienced officers of proven merit to man the higher posts by way of promotion.
[158B; 156B D] 2.
The validity of rule providing for fixation of seniority between the direct recruits and promotees in the grade of Section officer on the basis of quota reserved for direct recruits (i.e. 1/5 of the total substantive vacancies) has already been upheld by this Court.
But this does not mean that the direct recruits who are senior to the promotees are entitled to be considered for promotion to a higher post even though they do not fulfil the eligibility qualification specified in the rule framed by the rule making authority.
The rule making authority is competent to frame rules laying down eligibility condition for promotion to a higher post, and it cannot be said that a direct recruit who is senior to the promotees is not required to comply with the eligibility condition and he is entitled to be considered for promotion to the higher post merely on the basis of his seniority.
The submission that a senior Section officer has a right to be considered for promotion to Grade I post when his juniors who have fulfilled the eligibility condition are being considered for promotion to the higher post, is wholly unsustainable.
[155G; 156A B; 157D F] H.V. Pardasani & Ors.
vs Union of India, , followed.
150 3.
When qualifications for appointment to a post in a particular cadre are prescribed, the same have to be satisfied before a person can be considered for appointment.
Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the relevant rules.
A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion.
Seniority will be relevant only amongst persons eligible.
Seniority cannot be substituted for eligibility nor can it over ride it in the matter of promotion to the next higher Post.
[157G H: 158A]
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<s>[INST] Summarize the judgementAppeal No. 408 of 1957.
Appeal by Special Leave from the Judgment and Order dated the 28th September, 1955, of the former Bombay High Court in Income tax Reference No. 5 of 1955.
Sanat P. Mehta, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellant.
A. N. Kripal, R. H. Dhebar and D. Gupta, for the respondent.
October 18.
The Judgment of the Court was delivered by SHAH J.
To the appellant who was a non resident for the purposes of the Indian Income Tax Act, 1922, had accrued in the assessment years 1943 44, 194445, 1946 47 and 1947 48 certain dividend income within the taxable territory of British India, but the appellant did not submit returns of his income for those assessment years.
In exercise of his powers under section 34 of the Indian Income Tax Act, 1922, the Income Tax Officer, Bombay City, served upon the appellant notices under section 34 read with s, 22(2) of the Act for assessment of tax in respect of those years.
The notice for the year 1943 44 was served on the appellant on March 27, 1952, for the year 1944 45 on February 16, 1953, for the year 1946 47 on April 4, 1951 and for the year 1947 48 on April 2, 1952.
The Income Tax Officer completed the assessments in respect of the years 1943 44, 1944 45 and 1947 48 on May 6, 1953 and for the year 1946 47 on March 19, 1952.
The orders of assessment were confirmed by the Appellate Assistant Commissioner and by the Income Tax Appellate Tribunal.
At the instance of 37 the appellant, the Income Tax Appellate Tribunal drew up a statement of the case under section 66(1) of the Income Tax Act and submitted to the High Court of Judicature at Bombay the following two questions: (I).
Whether the notices issued under section 22(2) of the Act read with section 34 of the Act for the assessment years 1943 44, 1944 45, 1946 47 and 1947 48 were served after the period of limitation prescribed by section 34 of the Act? (2) If the answer to Question No. 1 is in the affirmative, whether the assessments for the years in question were invalid in law? The High Court answered the first question in the negative and observed that on that answer, the second question " did not arise ".
With special leave under article 136 of the Constitution, this appeal is preferred by the appellant against the order of the High Court.
The only question which falls to be determined in this appeal is whether the proceedings for assessment were commenced within the period of limitation prescribed for serving notice of assessment under section 34(1)(a) of the Act.
At the material time, by section 34 (1)(a), the Income Tax Officer was invested with power amongst others to serve at any time within eight years from the end of any year of assessment notice of assessment if he had reason to believe that income, profits or gains had escaped assessment by reason of omission or failure on the part of the assessee to make a return of his income under section 22 for that year, or to disclose fully and truly all material facts necessary for his assessment of that year.
In those cases where the Income Tax Officer had in consequence of information in his possession reason to believe that income, profits or gains had escaped assessment even though there was no omission or failure as mentioned in el.
(a), he could under cl.
(b) within four years from the end of the year of assessment serve a notice of assessment.
Admittedly, the notices issued by the Income Tax Officer for the years in question were issued within eight years from the end of the years of assessment and if el.
(1)(a) of section 34 applied, the assessment was not barred by the law of limitation.
38 But the appellant contended that the notices for assessment were, even though he had not made a return of his income for the years in question, governed not by cl.
(1)(a) of section 34, but by cl.
(1)(b) of section 34.
He contended that being a resident outside the taxable territory in the years of , assessment, a general notice under section 22(1) did not give rise to a liability to submit a return, and his inaction did not amount to omission or failure to submit a return, inviting the applicability of section 34(1)(a).
He submitted that omission or failure to make a return can only arise qua a non resident, if no return is filed after service of an individual notice under section 22(2).
In other words, the plea is that a notice under section 22(1) imposes an obligation upon persons resident within the taxable territory and not upon non residents, and support for this argument is sought to be obtained from section 1 sub section
(2) which extended the Income Tax Act at the material time to British India.
The expression " every person whose total income during the previous year exceeded the maximum amount which is not chargeable to income tax " in section 22(1) includes all persons who are liable to pay tax and there is nothing in the section or in its context which exempts non residents from liability to submit a return pursuant to a notice thereunder.
The fact that a non resident assessee may not come to know of the general notice issued under section 22(1) is not a ground for not giving effect to the plain words used in the section.
In terms, the clause read with r. 18 requires every person who has taxable income to submit his return, and if he fails to do so, under section 34 of the Act the Income Tax Officer may commence proceedings for assessment within the period prescribed by cl.
(1)(a).
Section 34(1)(b) applies only to those cases where there is no omission or failure to make a return of the income or to make a full and true disclosure of facts material to the assessment.
To the appellant though non resident income bad admittedly accrued in the taxable territory and that income exceeded the maximum amount not chargeable to income tax.
, The appellant not having submitted a return in pursuance of the notice issued under section 221 the Income Tax 39 Officer was competent under section 34(1)(a) to issue notice at any time within eight years of the end of the year of assessment for assessing him to tax.
Once a notice is given by publication in the press and in the prescribed manner under section 22(1), every person whose Th.
income exceeds the maximum amount exempt from tax is obliged to submit a return and if he does not do so, it will be deemed that there was omission on his part to a make a return within the meaning of section 34(1)(a).
There is no warrant for the submission that section 22(1) applies to residents only and that an obligation to make a return on the part of a nonresident can only arise if a notice under sub section
(2) is served.
Under sub section
(2) it is open to the Income Tax Officer to serve a special notice upon any person requiring him to furnish a return in the prescribed form, but that provision does not derogate from the liability arising under sub section
(1) to submit a return.
The Income Tax Act extends by section 1(2) to the taxable territory and not beyond; but within that territory, the Income Tax Officer has power to tax income which accrues, arises or is received, and that is not disputed by the appellant.
If power to tax be granted, it is difficult to appreciate the ground on which the plea that the general provision imposing liability upon persons receiving taxable income is subject to an unexpressed limitation that it is to apply only to residents and not to non residents.
The submission that a person liable to pay tax but resident outside the taxable territory must be served with a special notice under section 22(2) before his inaction in the matter of making a return may be deemed omission within the meaning of section 34(1) is without force.
There is no such express provision made by the statute and none can be implied from the context.
The High Court was therefore right in holding that the proceedings for assessment were properly commenced within the period of limitation prescribed by section 34(1)(a) from the close of the year of assessment.
The appeal fails and is dismissed with costs.
Appeal dismissed.
[/INST]A Munsif appointed one R as a commissioner for seizing the account books of the plaintiff in a suit and to produce them before him.
R seized the account books, and while they were still in his possession the appellants offered a bribe to R for being allowed to tamper with them.
The appellants were tried and convicted under section 165 A of the Indian Penal Code.
The appellants contended that the Munsif had no jurisdiction to appoint a commissioner for seizing account books, that the appointment of R as a commissioner was null and void and that consequently R was not a public servant and the appellants committed no offence in offering him a bribe.
The respondent urged that the Munsif had jurisdiction under his inherent powers under section 151, Code of Civil Procedure, to appoint the commissioner and that in any case as R was in actual possession of the situation of a public servant within Explanation 2 to section 21 Of the Indian Penal Code, he would be deemed to be a public servant.
Held, that R was not a public servant and the appellants did not commit any offence under section 165 A of the Penal Code by offering him a bribe.
The Munsif had no inherent powers to appoint a commissioner to seize account books and his order was null and void.
The inherent powers under section 151, Code of Civil Procedure, were with respect to the procedure to be followed by a Court in deciding the cause before it; such powers did not extend over the substantive rights of litigants.
A party had full rights over his account books and the Court had no inherent power to forcibly seize his property.
Explanation 2 to section 21, Indian Penal Code, applied only to a person actually in possession of a pre existing office of a public servant.
In the present case there was no post or office of a commissioner in existence which could be said to have been occupied by R. His appointment being without jurisdiction R could not be deemed to be a public servant. 885
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<s>[INST] Summarize the judgementNo. 37 of 1950.
Appeal from a judgment of the Bombay High Court (Chagla C.J. and Dixit J.) in Appeal No. 281 of 1947.
K. section Krishnaswami Aiyangar (K. Narasimha Aiyangar, with him) for the appellant.
M.C. Setalvad, Attorney General for India, (B. Sen, with him) for the respondent.
December 1.
The Judgment of the court was deliv ered by CHANDRASEKHARA AIYAR J.
This appeal, preferred ch from the decree of the Bombay High Court in Appeal No. 281 of 1947, raises the question whether an execution application seeking to execute a final decree, passed by the let Class Subordinate Judge 's Court at Poona, on 6th December, 1932, for a sum of Rs. 1,24,215 and odd, is barred by limitation.
The decree was made in a suit for dissolution of a partner ship and the taking of accounts.
854 The execution application was filed on 4th October, 1946, and the amount stated to be due under the decree on that date was Rs. 2,30,986 and odd.
The previous execution application No 946 of 1940 filed in the Court of the 1st Class Sub Judge, Sholapur, to which the decree had been transferred for execution, was made on 24th June, 1940.
It was dismissed on 9th September, 1940, for non prosecution.
It would thus be seen that the present application was filed after the lapse of 12 years from the date of the final decree and 3 years from the date of the final order on the previous application.
To surmount the bar of limitation, the decree holder, who is the appellant before us, raised four contentions:firstly, that the final decree, which provided that the plaintiff should pay the deficit court fees on the decretal amount before the execution of the decree, was a conditional decree, and that time began to run from the date when the condition was fulfilled on 5th Decem ber, 1935, by payment; secondly, that the period occupied by the insolvency proceedings from 10th August, 1937, to 14th December, 1942, initiated by the decree holder to get the first judgment debtor Walchand Ramchand Kothari (with whom alone we are now concerned) adjudged an insolvent, should be excluded under section 14 (2) of the Limitation Act; third ly, that the period occupied by one Tendulkar, who was the creditor of the present decree holder, in seeking to execute this decree, should be deducted; and lastly, that as the judgment debtor prevented execution of the decree against the 'Prabhat ' newspaper by suppressing his ownership of the same, a fresh starting point of limitation springs up in the decree holder 's favour from the date of the discovery of the fraud.
The Subordinate Judge held that the execution applica tion was not barred, agreeing with every one of these con tentions.
On appeal to the High Court Chagla C.J. and Dixit J. reversed this decision, holding that it was not a condi tional decree, that the steps taken by Tendulkar to execute this decree were of no avail, and that the insolvency pro ceedings were for a 855 different relief altogether, so that section 14 (2) of the Limitation Act could not be invoked.
They concurred with the finding of the Subordinate Judge that the judgment debtor prevented the execution of the decree within 12 years by fraudulent concealment of his ownership of the 'Prabhat ' newspaper and that the twelve years ' bar of limi tation did not apply; but they held that the application was barred under article 182 of the Limitation Act, as more than three years had run from 9th September, 1940, the date of the dismissal of the previous execution application, before the present application was filed on 4th October, 1946.
Points 1 to 3 above mentioned are of no avail to the appel lant.
The decree was not a conditional one in the sense that some extraneous event was to happen on the fulfilment of which alone it could be executed.
The payment of court fees on the amount found due was entirely in the power of the decree holder and there was nothing to prevent him from paying it then and there; it was a decree capable of execu tion from the very date it was passed.
There could be no exclusion of the time occupied by the insolvency proceedings which clearly was not for the purpose of obtaining the same relief.
The relief sought in insolvency is obviously differ ent from the relief sought in the execution application.
In the former, an adjudication of the debtor as insolvent is sought as preliminary to the vesting of all his estate and the administration of it by the Official Receiver or the Official Assignee, as the case may be, for the benefit of all the creditors; but in the latter, the money due is sought to be realized for the benefit of the decree holder alone, by processes like attachment of property and arrest of person.
It may be that ultimately in the insolvency proceedings the decreeholder may be able to realize his debt wholly or in part, but this is a mere consequence or result.
Not only is the relief of a different nature in the two proceedings but the procedure is also widely divergent.
The steps taken by the appellant 's creditor Tendulkar to attach this decree and put it in execution do not save limitation.
His darkhast for attachment of the 856 present decree was on 3rd April, 1940, and for execution of the present decree was on 1st February, 1944, more than 3 years from 9th September, 1940, which is the date of the dismissal of the appellant 's prior execution petition.
The learned Advocate for the appellant therefore devot ed most of his argument to the fourth contention set forth above.
That the judgment debtor respondent suppressed his ownership of the 'Prabhat ' newspaper and fraudulently pre vented the execution of the decree against this property has been found by both the Courts below, as stated already.
It was strenuously urged that the fraud so found is not merely fraud as broadly interpreted under section 48 (2), Civil Procedure Code, but also strict or concealed fraud within the meaning of section 18 of the Limitation Act.
In this connection, it is as well to set out very briefly the nature of the concealment and the steps taken by the judgment debtor to achieve the same.
He purchased the 'Prabhat ' newspaper with all its assets and goodwill from its previ ous owner one Purushottam Mahadev in 1938 under the letter marked Exhibit 129.
He opened current accounts in several banks, and gave the name of one Abhyankar as the owner of the paper, but he was himself operating on those accounts.
One Rajwade, a friend of the judgment debtor, was shown as the printer and publisher of the paper.
Even in his supplementary written statement flied in Court in answer to the present execution, marked Exhibit 88 (page 53 of the printed book), the defendant asserted in paragraph 2 that he became the owner of the newspaper only in April,/944, and that previously he had no ownership or right in the same.
He did not go into the witness box to refute the allegation that he was the owner ever since the purchase of the paper in 1938 and that he opened accounts in the names of other people on which he was operating for his own benefit.
On these facts, the Subordinate Judge found as follows : "I think on the whole that the evidence establish es beyond doubt that the judgment debtor had concealed his proprietary interest in his newspaper called 857 Prabhat ' from June, 1938, to April, 1944.
The only purpose for which the property could have been concealed in this way was probably the fear that the decree holder would pounce upon it if he came to know about it.
The decree holder came to know of this fraud after April, 1944; for thereafter the judgment debtor made an open declaration that the newspaper belonged to him.
I think therefore that this fraud has prevented the decree holder from executing the decree against some property of the judgment debtor.
" In this finding, the High Court concurred.
After referring to the stratagem adopted by the judgment debtor in Bhagu Jetha vs Malick Bawasaheb(1), the learned Judges observed: "In this case, in our opinion, the stratagem is much more dishonest.
The attempt on the part of the judgment debtor was to conceal his property, to deny its ownership and to put forward a mere benamidar as the real owner of that property.
In our opinion, therefore, the execution of the decree is not barred under section 48.
The 'judgment debtor has, by fraud, prevented the execution of the decree within 12 years before the date of the application for execution by the decree holder and therefore the decree under consideration is capable of being executed.
" On the strength of this concurrent finding, Mr. Krish naswami Iyengar for the appellant argued that the fraud fell within the scope of section 18 of the Limitation Act and that if it were so, he was out of the woods, inasmuch as the proper article to apply would be article 181 of the/imita tion Act.
The right to apply accrued to him when the fraud became known to him in or about June, 1946. 'Till then he was kept by the fraud from the knowledge of his right to make an application against the property.
Law does not require him to make futile successive applications in execu tion, in the face of this fraud.
He was not in a position to seek even the arrest of the judgment debtor as he had got himself declared in the insolvency proceedings as agriclu turist." within the meaning of the Deccan (1) I.L.R. 110 858 Agriculturists ' Relief Act.
alleging falsely that he was not in receipt of any income by way of salary or remuneration from the newspaper concerned and that he was mainly depend ent on the income of his family lands for his maintenance.
There can be no question that the conduct of the re spondent was fraudulent within the meaning of section 48 (2) of the Civil Procedure Code.
Though benami transactions are common in this country and there is nothing per se wrong in a judgment debtor purchasing property in another man 's name, we have to take into account all the circumstances attending the purchase and his subsequent conduct for find ing out whether it was part of a fraudulent scheme on his part to prevent the judgment creditor from realizing the fruits of his decree.
Fraudulent motive or design is not capable of direct proof in most cases; it can only be in ferred.
The facts before us here leave no room for doubt that the true object of the judgmentdebtor was to prevent the execution of the decree against the ' Prabhat ' news paper Which he had purchased.
Other persons were shown as the printer and the publisher of the newspaper, while Abhy ankar was mentioned as the proprietor, The judgement debtor, was, however, operating on those accounts for his own benefit.
In the Insolvency Court, he set up the plea that he was an agriculturist, by suppressing the truth about his ownership of the paper, and pretending that his income was mainly, if not solely, from the family lands.
He kept up this show till April 1944, when probably he felt that he was sale from the reach of the judgment creditor.
Even in his answer to the execution application, out of which this appeal has arisen, he had the hardihood to assert that he was not the owner of the paper till April 1944.
It should also be remembered that he did not get into the witness box to explain what other necessity there was for all this camouflage, except it be to cheat the appellant of his dues under the decree.
Mr. Setalvad, the learned Attorney General, who appeared for the respondent, pointed out that there 859 was no benami purchase and that the holding out of Abhyankar as the proprietor of the ' Prabhat ' did not amount to any false representation or misrepresentation to the judgment creditor, as the accounts on which reliance was placed were accounts opened in the banks and were not ordinarily avail able for inspection by third parties.
This line of reasoning is hardly convincing, when we have to consider whether what is attributed to the judgment debtor does not amount to a fraudulent scheme or device for preventing execution of the decree that had been passed against him for a very large sum of money.
In the very nature of things, fraud is secret in its origin or inception and in the means adopted for its success.
Each circumstance by itself may not mean much, but taking all of them together, they may reveal a fraudulent or dishonest plan.
It would be convenient to set out here in extenso sec tion 48, Civil Procedure Code, and section 18 of the Limita tion Act before we proceed to consider the soundness of the arguments advanced by both sides in support of the positions they have taken up.
Section 48, Civil Procedure Code (which corresponds to section 230 of the Code of 1882), is in these terms: " 48.
(1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of 12 years from (a) the date of the decree sought to be executed, or (b) where the decree or any subsequent order directs, any payment of money or the delivery of any property to be made at a certain date or at recurring periods the date of the default in making the payment of delivery in respect of which the applicant seeks to execute the decree.
(2) Nothing in this section shall be deemed (a) to preclude the Court from ordering the executior of a decree upon an application presented after the expiration of the said term of twelve years, where the 860 judgment debtor has by fraud or force prevented the execu tion of the decree at some time within twelve years immedi ately before the date of the application; or (b) to limit or otherwise affect the operation of arti cle 183 of the first Schedule to the Indian Limitation Act, 1908.
" Section 18 of the Limitation Act, 1908, runs thus: " 18.
Where any person having a right to institute a suit or make an application has, by means of fraud, been kept from the knowledge of such right or of the title on which it is founded, or where any document necessary to establish such right has been fraudulently concealed from him, the time limited for instituting a suit or making an application (a) against the person guilty of the fraud or accessory thereto, or (b) against any person claiming through him other wise than in good faith and for a valuable consideration, shall be computed from the time when the fraud first became known to the person injuriously affected thereby, or, in the case of the concealed document, when he first had the means of producing it or compelling its production." Whether the fraud of the judgment debtor should actually prevent the execution of the decree or whether it is enough if the fraud has been committed without esulting in actual prevention is a question on which there has been some diver gence of opinion in the decided cases.
The former view was taken in an early Madras case Kannu Pillay vs Chellathammal and ) Others(1) and receives support from the decision reported in Sri Raja Venkata Lingama Nayanim Bahadur Varu and Another vs Raja Inuganti Rajaopala Venkata Narasimha Rayanim Bahadur Varu and five Others(2)to which our learned brother Mr. Justice Patanjali Sastri was a party.
The latter view ( (1) [1898] M.I.J. Mad.
861 is indicated in M.R.M.A.S.P. Ramathan Chefliar vs Mahalingam Chetti(1) by a Bench of which Sir Madhavan Nair J. was a member.
It is not necessary to determine which view is correct, as we have here definite findings of both the Courts below that there was fraud preventing the execution of the decree within the meaning of Section 48 of the Civil Procedure Code.
The appellant thus escapes the bar of the 12 years ' period and he has a fresh starting point of limitation from the date of the fraud for section 48 of the Civil Procedure Code.
In other words, the decree holder has another 12 years within which he can execute his decree.
Having thus got over the difficulty in his way under section 48 of the Code of Civil Procedure, he has next to meet the objection under the Limitation Act.
On behalf of the appellant, it was urged that section 18 of the Limita tion Act applied to the facts and that the right to apply accrued to the appellant when the fraud by the judgment debtor became known to him in 1946.
No reliance was placed on section 18 of the Limitation Act in the courts below and no reference to it is found in the grounds of appeal to this court.
It is however mentioned for the first time in the appellant 's statement of the case.
If the facts proved and found as established are sufficient to make out a case of fraud within the meaning of section 18, this objection may not be serious, as the question of the applicability of the section will be only a question of law and such a question could be raised at any stage of the case and also in the final court of appeal.
The following obser vations of Lord Watson in Connecticut Fire Insurance Co. vs Kavanagh (2) are relevant.
He said: "When a ques tion of law is raised for the first time in a court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain the plea.
The expediency of (1) 1.L.R. (2) 862 adopting that course may be doubted when the plea cannot be disposed of without deciding nice questions of fact in considering which the court of ultimate review is placed in a much less advantageous position than the courts below." Mr. Setalvad, however, urged that the appellant should not be allowed to rely on section 18 now for the first time and that even if fraud within the meaning of that section had been pleaded the respondent might have adduced counter evidence by himself going into the witness box or otherwise.
According to him, the approach to the question of fraud under section 18 of the Limitation Act is quite different from the approach under section 48 of the Civil Procedure Code.
There may be cases where the fraud alleged and found is fraud in the wider sense of the term within the meaning of section 48 (2) of the Civil Procedure Code, but the same facts do not amount to fraud as strictly construed under section 18 of the Limitation Act.
The fact that the decree holder in the lower courts relied on section 48, Civil Procedure Code, only does not prevent him from relying on section 18 of the Limitation Act if the facts necessary to be established for bringing in the assistance of section 18 of the Limitation Act are admitted, or proved.
It is not disputed that the fraud contemplated by section 18 of the Limitation Act is of a different type from the fraud contem plated by section 48 (2) of the Civil Procedure Code.
The wording of section 18 which requires the fraud "to prevent knowledge of the right to make the application" is neces sarily of a different nature from the fraud which prevents the decree holder from making an application for execution.
Conceding to the appellant the right to rely on section 18 of the Limitation Act even at this late stage, let us see if it is really of any help to him on the facts found.
The section has been quoted already.
It speaks of the right to institute a suit or make an application which by means of fraud has been kept from the knowledge of the person having the right or the title on which it is founded.
The right to apply for 863 execution of a decree like the one before us is a single and indivisible right, and not a composite right consisting of different smaller rights and based on the decree holder 's remedies to proceed against the person of the judgment debtor or his properties, moveable and immoveable.
Togive such a meaning would be to split up the single right into parcels and to enable the decree holder to contend that while his right to proceed against a particular item of property is barred, it is not barred in respect of other items.
We would then be face to face with different periods of limitation as regards one and the same decree.
An inter pretation which leads to this result is prima facie un sound.
Both sides agreed that this is the true position, but they reached it from slightly varying standpoints.
According to the appellant, fraud even with reference to one property gives him a further extension of 12 years under section 48 (2) as regards the whole decree and it is not necessary for him to show that he had proceeded against the other properties of the judgment debtor.
According to the respondent, the fraud must consist in the concealment of the knowledge of the decree holder 's right to apply for execution of the decree and it is not enough to prove or establish that the fraud prevented him from ' proceeding against a specific item.
The two contentions, lead to the same conclusion about the indivisibility of the decree, but along different lines.
In our opinion, the facts necessary to establish fraud under section 18 of the Limitation Act are neither admitted nor proved in the present case.
Concealing from a person the knowledge of his right to apply for execution of a decree is undoubtedly different from preventing him from exercising his right, of which he has knowledge.
Section 18 of the Limitation Act postulates the former alternative.
To read it as referring to an application for execution to proceed against a particular property would be destructive of the oneness of the decree and would lead to multiplicity of periods of limitation.
It is true that articles 181 and 182 of the Limitation Act and section 48, 864 Civil Procedure Code, should be read together.
The articles expressly refer to the section.
But they are independent or parallel provisions, different in their scope and object.
As held in Kalyanasundaram Pillai vs Vaithilinga Vanniar (1) section 48 (2) extends the 12 years ' period of closure by a further period of similar duration but the necessity of resort to article 182 is not thereby obviated.
The decree holder must have been taking steps to keep the decree alive and the only circumstance that could relieve him of this obligation is the existence of fraud under section 18 of the Limitation Act.
The learned Advocate of the appellant asked how it could be possible for him to apply in execution when there was the fraud and whether the law contemplated that, even though the fraud prevented execution of the decree, he was to go on filing useless or futile applications every three years merely for keeping the decree alive.
The answer is simple.
The fraud pleaded namely suppression of owner ship of the 'Prabhat ' newspaper, did not conceal from him his right to make an application for execution of the de cree.
Indeed, the suppression, which began in 1938, did not prevent the decree holder from applying for execution in 19 10; and in his answers in cross examination, he has adimitted that there were other properties to his knowledge against which he could have sought execution, viz., deposits in several banks of the judgment debtor 's monies but stand ing in his wife 's or daughter 's names, life insurance poli cies for which premia were being paid by him, law books written and published by him, movable properties in the house at Poona etc.
As a matter of fact, the appellant 's present application seeks execution against several of these properties.
Nothing prevented him therefore ,from seeking such execution within 3 years of the dismissal of his prior application in 1940.
Even with reference to the 'Prabhat ', all that the decree holder states is that as he had no evidence to prove that the concern belonged to the defendant he did not take any steps, and not that he had no (1) I,L.R. 1939 Mad.611 865 knowledge of the ownership.
To quote two sentences from his deposition: "I had suspected that defendant No. 1 was the real owner of the business all the while.
But I had no posi tive knowledge or information till 1946" . . "I could not take any step for attaching the defendant 's business till 1946 as I had no evidence to prove the defendant 's fraud till then.
" There is no obligation on the judgment debtor to post the decree holder with all details of his properties; it is the decree holder 's business to gather knowledge about the properties so that he can realise the fruits of his decree.
In dealing with this evidence, Mr. Krishnaswami lyengar relied on the Privy Council decision, Rahimbhoy vs Turner in 20 I.A. 1 and referred to the following observation of Lord Hobhouse at page "But their Lordships consider, and in this they agree with both the Courts below, that all that the appellant Rahimbhoy has done is to show that some clues and hints reached the assignee in the year 1881, which perhaps, if vigorously and acutely followed up, might have led to a complete knowledge of the fraud, but that there was no disclosure made which informed the mind of the assignee that the insolvent 's estate had been defrauded by Rahimbhoy of these assets in the year 1867.
" The passage cited does not apply here because the appellant admits knowledge, which is more than a mere suspicion, but states that he had no evidence to prove the defendant 's ownership.
In any event, it has not been established within the meaning of section 18 of the Limitation Act that the fraud alleged and proved kept back from him the knowledge of his right to execute the decree.
It is thus clear that the appellant cannot get the benefit of section 18 of the Limitation Act.
It was next argued on behalf of the appellant that under section 48(2) of the Civil Procedure Code, because of the fraud of the respondent the appellant got a fresh starting point of limitation for the Limitation Act also 111 866 and therefore the starting point contemplated in the third column of the schedule to the Limitation Act relating to applications for execution should be the date when the fraud was discovered by the appellant.
In other words, it was argued that the effect of section 48 was not merely to make the 12 years ' period start from the discovery of fraud for the purpose of section 48(2) of the Civil Procedure Code but also to give a fresh starting point for the schedule to the Limitation Act.
This argument cannot be accepted.
If a man is prevented from making an application, because of the fraud of the debtor, he is not necessarily prevented from knowing his right to make the application.
By the enactment of section 18, the Legislature has distinctly contemplated that for the Limitation Act the starting point is changed on the ground of fraud, only when the knowledge of the right to make the application is prevented by the fraud of the judg mentdebtor.
Having the knowledge that he had the right to make the application, if the judgment debtor prevents the decree holder from knowing the existence of certain properties against which the decree could be enforced, the case is clearly not covered by the words of section 18 of the Limitation Act.
Therefore the argument advanced on behalf of the appellant is unsound.
It was urged that the various starting points mentioned in the third column to article 182 of the Limitation Act cannot apply because none of them specify a fresh starting point for execution acquired on the ground of the fraud of the judgment debtor.
This argument, in our opinion, instead of helping the appellant, goes against him.
Such a provision in the third column in the article relating to execution of decrees is not necessary because provision for such a con tingency is made in section 18.
Affirmatively, by the inclu sion of section 18 in the Limitation Act, and, negatively, by not providing for a separate period of limitation in the case of the fraud of the judgment debtor in the third column in the articles, the Legislature has clearly indicated that unless advantage could be taken by the 867 decree holder under section 18 on the ground of the fraud of the judgment debtor, fraud does not give any other relief under the Limitation Act.
This scheme of the Legislature is not inconsistent with section 48 of the Civil Procedure Code.
The two provisions in the two Acts have to be read as related to the same subject but dealing with two differents aspects.
Without section 48 of the Civil Procedure Code a decree holder, if he made applications as required by arti cle 181 or 182 of the Limitation Act, could keep his decree alive for an indefinite period.
The Legislature, as a matter of policy, ruled that a decree of a civil court (but excluding the High Court) shall not be kept alive for more than 12 years, although all necessary steps are taken under the Limitation Act to keep the decree alive and operative.
That is one limit to the right of the decree holder to enforce the decree of the court.
The second limitation to his right, which is independent of the first, is that he must keep the decree alive under article 182 or 181, as the case may be.
In the case of the fraud of the judgment debtor provision is made in section 48(2) for enlarging the 12 years period prescribed under section 48.
For defeating the plea of the bar of limitation under the Limitation Act, in the case of fraud of the judgment debtor, provision is found in section 18 of the Limitation Act.
If the particu lar case of fraud set up and proved is not covered by those words, there is no protection against the same in the Limi tation Act.
Read in that way, the two legislative provi sions are neither conflicting nor overlapping; and they are capable of operating harmoniously, as they deal with different situations and circumstances.
The argument ad vanced on behalf of the appellant that because of the fraud he got not merely a fresh starting point for computing the 12 years period prescribed in section 48 ( '2,) of the Civil Procedure Code but is also entitled to an extension of the time under the Limitation Act, must therefore fail.
The second contention urged on behalf of the appellant that because in the third column of article 182 868 fraud is not mentioned, the case is covered by article 181 does not also appear to be sound.
The third column in article 182 prescribes the starting point of limitation under different specified circumstances.
It does not, and indeed need not, mention the ground of fraud because if fraud of the kind against which the Limitation Act contem plates relief, as prescribed in section 18 of the Limitation Act, is established, the time is automatically altered by operation of that section.
If the case does not fall under that section, no relief is permitted under the Limitation Act and the starting point for computing the period must be as mentioned in the third column, irrespective of the question of fraud.
In our opinion, therefore, the conten tion that because of the fraud established in the present case under section 48(2) of the Civil Procedure Code, the appellant gets a fresh starting point of limitation under article 182 of the Limitation Act is unacceptable.
The appellant relied on the general principle of juris prudence that fraud stops or suspends the running of time and that it should be applied in his favour, apart from section 18 of the Limitation Act.
Rules of equity have no application.
where there are definite statutory provisions specifying the grounds on the basis of which alone the stoppage or suspension of running of time can arise.
While the courts necessarily are astute in checkmating or fighting fraud, it should be equally borne in mind that statutes of limitation are statutes of repose.
For the reasons given above we concur in the conclusion reached by the High Court and dismiss the appeal with costs.
Appeal dismissed.
[/INST]The vendors executed an agreement for sale in respect of a certain survey number which according to the agreement was to be diverted to non agricultural purposes and thereafter a sale deed was to be executed.
In pursuance to the said agreement the vendors applied for diversion which was sanctioned subject to the payment of premium and other conditions.
Before the sale deed was executed respondent No. 1 Sridhar brought a suit for pre emption against the appellant on the ground that he had a co occupancy in the survey number in dispute being the owner of the adjoining survey number.
The suit was decreed and on appeal the High Court inter alia held that the transaction was a sale which was subject to pre emption and that the failure to execute and register a sale deed was a subterfuge to defeat the right of pre emption.
The question for decision was (1) whether a right of pre emption had accrued to respondent Sridhar under the provisions of the Berar Land Revenue Code, 1928, and (2) whether the appellant was guilty of fraud in that in order to defeat the right of pre emption the deed of sale was not executed, but for all intents and purposes the appellant had become the owner of the property.
Held, that the right of pre emption in Berar did not arise from Mohamedon Law and did not exist till it was brought from Land laws of the Punjab or North West Provinces.
The right of pre emption under the Berar Land Revenue Code extended to transactions of sale, usufructuary mortgages and leases for 15 years or more and right under Mohamedon Law applies only to sales.
The word sale has no wider connotation under section 176 of the Berar Land Revenue Code than it has in the Transfer of Property Act.
After the application of Transfer of Property Act to Berar a transaction of sale could not be effective except through a registered instrument.
The contract of sale in the instant case created no interest in favour of the appellant and the proprietary title did not validly pass from the vendors to the appellant and until that was completed no right to enforce pre emption arose.
The transfer of 249 property, where the Transfer of Property Act applied, had to be under the provisions of the Transfer of Property Act only and neither the Mohamedon Law nor any other personal law of transfer of property could override the statute law.
There are no equities in favour of a pre emptor, whose sole object is to disturb a valid transaction by virtue of the right created by statute.
Held, further that it is neither illegal nor fraudulent for the parties to a transfer, to avoid and defeat a claim for preemption by all legitimate means and a person is entitled to steer clear of the laws of pre emption by all lawful means.
</s>
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<s>[INST] Summarize the judgementN: Criminal Appeal No. 233 of 1978.
Appeal by Special Leave from the Judgment and Order dated the 20th April, 1978 of the Madras High Court in Writ Petition No. 988 of 1978.
AND WRIT PETITION NO.
4327 OF 1978 (Under Article 32 of the Constitution of India) Ram Jethmalani M. G. Kurnali and Vineet Kumar for the Appellant/Petitioner.
A. V. Rangam for the Respondent.
635 The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
Bhawarlal Ganeshmalji whose application for the issue of a Writ of Habeas Corpus was rejected by the High Court of Madras, is the appellant in Criminal Appeal No. 233 of 1978.
He has also filed Writ Petition No. 4327 of 1978 for the issue of a Writ of Habeas Corpus under Article 32 of the Constitution in which he has raised certain grounds which had not been raised before the Madras High Court.
The appeal and the Writ petition were heard together by us and are disposed of by this common order.
The impugned detention order was made on 19th December, 1974 by the Government of Tamil Nadu and the grounds for the order were contained in a memorandum dated 20th December, 1974 of the Government of Tamil Nadu.
The order of detention could not be executed immediately as the appellant petitioner was absconding and could not be apprehended despite a proclamation made pursuant to Section 7 of the .
The appellant petitioner, however, surrendered himself before the Commissioner of Police, Madras on 1st February, 1978.
First the order of detention and later the grounds of detention were served on the appellant petitioner.
There were two grounds of detention which were as follows: "(i) On 23 2 1972 an inland registered parcel bearing No. 325 emanating from one T. Chowdiah No. 2, Sanjeev appa Lane, Bangalore, and addressed to M/s. Raj Metal House, 77, Mint St. Madras was intercepted by Preventive Officers of the Madras Customs at the Madras General Post Office and it was found to contain Indian currency amounting to Rs.1,20,000/ and the currency was seized under the Customs Act.
Sukanraj, owner of M/s. Raj Metal House on being questioned admitted in a written statement dated 23 2 1972 that the currency was sent by one R. G. Bhandari 's man from Bangalore, to be received by him and handed over to one Bhoormal, a partner of R. G. Bhandari, residing with the latter.
He also stated that he knew well that R. G. Bhandari was dealing in smuggled gold at Ban galore; Sukanraj further stated that within the previous two months, 5 or 6 parcels were received by him and by his brother Motilal.
Motilal also gave an independent statement on the same day corroborating the facts mentioned by his brother that R. G. Bhandari was dealing in smuggled gold and that the currencies in post parcels were the sale proceeds of smuggled gold.
On enquiry at the Park Town 636 Post Office it was found that seven registered parcels had been delivered to M/s. Raj Metal Works between 18 1 1972 and 17 2 1972 and received either by Sukhanraj or Motilal.
At Bangalore, the premises at No. 2, Sanjeev appa Lane the address mentioned on post parcel, was searched on 23 2 1972.
T. Chowdiah, the sender of the said parcel was not there.
But one Ghaverchand Samarthajee was present.
He admitted in his statement dated 24 2 1972 that he was an employee of R. G. Bhandari and on the latter 's instructions he was disposing of smuggled gold in Bangalore on behalf of his master and despatching the sale proceeds to Madras.
The postal receipt bearing the No. 325 Avenue Road Post Office, Bangalore, in respect of the parcel which was seized at Madras was also seized.
This and his confessional statement revealed that he had previously despatched seven registered parcels to M/s. Raj Metal Works containing amounts to the tune of Rs.8,84,000/ using the name of T.Chowdiah and that he had disposed of 3900 bars of smuggled gold valued at Rs.80 lakhs within a short time of less than a month.
Bhawarlal, the servant of Bhoormal in Madras identified Ghaverchand Samarthajee as an employee of R. B. Bhandari used for gold smuggling business at Bangalore.
The case was adjudicated and the currency was confiscated.
personal penalty of Rs.5000/ was imposed on Thiru R. section Bhandari.
(ii) On 20 4 1974, 40 bars of gold weighing 23,274.100 grams valued at Rs.12,75,420/ was seized by Thiru Ramanathan Supdt.
Central Excise, Madras from a secret vacity of an Ambassador can MDE 9399 at the commercial Check Post, Hosur.
T. Ramamurthy of Porayar (driver) and Thiru Ganesan occupied the car.
Their statements revealed that the gold was sent by Sikku Govidaswami of Porayar, a noted transport agent for contraband goods.
Ganesan also admitted that the car with the contraband was to be handed over to one Marwari, at Bangalore at an appointed place.
The intelligence report dt.
17 4 74 and 19 4 74 by the Intelligence officer tc the .
Directorate of Revenue Intelligence which had been received earlier on the basis of which the aforesaid car was intercepted and the seizure was effected, had disclosed that the Marwari referred to was R. G. Bhandari 637 Shri Jethmalani learned Counsel for the detenu submitted that the order of detention which was made more than three years before its execution must be considered to have lapsed or ceased to be effective without a fresh application of the mind of the detaining authority to the facts and circumstances of the case and the necessity for preventive detention.
Otherwise, the learned Counsel submitted the order of preventive detention would change its character and be come an order of punishment for an unproven crime.
In regard to the first ground mentioned in the Memorandum of the Government, the learned Counsel submitted that all the four persons who had made statements on 23rd February, 1972 and 24th February, 1972, and which were the basis of the first ground, had resiled from their statements long before the order of detention was made.
The circumstance that all of them had resiled from their earlier statements was not brought to the notice of the detaining authority and the failure of the detaining authority to consider such vital material before arriving at its subjective satisfaction vitiated the ground and, therefore, the order of detention itself.
Shri Jethmalani urged that the order of detention had necessarily to be struck down even if a single ground out of many was bad since the order had been made at a time when Section 5A of the COFEPOSA had not yet been brought into the Statute Book.
In regard to the second ground of detention the submission of Shri Jethmalani was that it was not based upon any "rationally probative" material The ground was invalid inasmuch as it was based upon an intelligence report.
It was further contended that the ground would be innocuous without the aid of the intelligence report mentioned therein and since no privilege was claimed in respect of the intelligence report, the identity of the author of the report should have been disclosed as also the material on which the report was based.
Failure to do so had resulted in a denial of the petitioner 's fundamental right, under Article 22(5) of the Constitution.
Shri A. V. Rangam, learned Counsel for the State of Tamil Nadu urged that the appellant petitioner was himself responsible for the long delay in the execution of the order of detention and he could not be allowed to take advantage of his own wrong.
With regard to the first ground of detention he submitted that the circumstance that the persons who had incriminated the detenu had resiled from their former statements had been mentioned in the judication order passed by the Customs authorities and that order had been placed before the detaining authority before the order of detention was made.
In regard to the second ground of detention the learned Counsel argued that it was not based merely on the intelligence 638 report and in any case, since no privilege was claimed, it was always open to the detenu to have asked for more particulars if he so desired, but which he failed to do.
It is true that the purpose of detention under the COFEPOSA is not punitive but preventive.
The purpose is to prevent organised smuggling activities and to conserve and augment Foreign Exchange.
It is true that the maximum period for which a person may be detained under the COFEPOSA is one year.
It is further true that there must be a 'live and proximate link ' between the grounds of detention alleged by the detaining authority and the avowed purpose of detention namely the prevention of smuggling activities.
We may in appropriate cases assume that the link is 'snapped ' if there is a long and unexplained delay between the date of the order of detention and the arrest of the detenu.
In such a case we may strike down an order of detention unless the grounds indicate a fresh application of the mind of the detaining authority to the new situation and the changed circumstances.
But where the delay is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the 'link ' not snapped but strengthened.
That, precisely, is the state of affairs before us.
The order of detention was made on 19th December, 1974.
The detenu was found to be absconding.
Action was taken pursuant to Section 7 of the COFEPOSA and he was proclaimed as a person absconding under Section 82 of the Criminal Procedure Code.
The proclamation was published in several leading English and local language daily newspapers.
His photograph was exhibited in Cinema halls A reward of Rs. 5.000/ was also announced for his apprehension.
Despite all this effort he could not be arrested until he surrendered on 1st February, 1978.
We do not have any hesitation in over ruling the submission of Shri Jethmalani based on the delay in the execution of the order of detention The second submission made on behalf of the detenu that the detaining authority had not before it the circumstance that the four persons who had made statements implicating the detenu had later, but long before the order of detention, resiled from their statements is also devoid of force.
The proposition that the failure to place before the detaining authority relevant and material facts which may influence the mind of such authority one way or the other will vitiate the order of detention is unexceptionable.
But a perusal of the first ground of detention shows that the detaining authority took into 639 consideration the circumstance that there were 'adjudication ' proceedings, that the currency was confiscated and that a penalty of Rs.5,000/ was imposed on the detenu.
It was not disputed and it was not alleged in the petition that the order of adjudication by which the currency was confiscated and penalty was imposed did refer to the circumstance that persons who had made incriminating statements against the detenu had resiled from those statements.
The circumstance that persons who had earlier incriminated the detenu had later resiled from those statements was therefore before the detaining authority.
There is thus no factual foundation for this submission of the learned Counsel, which we accordingly reject.
We now proceed to consider the last submission of the learned Counsel based on the reference to the contents of the intelligence report in the second ground of detention.
It was pointed out by the petitioner 's learned Counsel that the statement of Ramamurthy and Ganesan merely showed that the contraband was to be delivered to a Marwari at Bangalore at an appointed place.
It was the intelligence report alone that fixed the identity of the Marwari as the detenu.
Without the intelligence report it would be impossible to connect the detenu with the person mentioned as the Marwari in the statements of Ganesan and Ramamurthy.
Now the submission of the learned Counsel was that the identity of the author of the intelligence report as well as the report and the material on which the report was based ought to have been disclosed to the detenu if the detenu was to effectively exercise his fundamental right under Article 22(5) of the Constitution and to make a representation against the order of detention We agree with the learned Counsel for the petitioner that in order to make a representation against the order of detention and thus to exercise the fundamental right guaranteed by Article 22(5) of the Constitution, a detenu is entitled to be furnished with all essential particulars forming the basis of the grounds of detention.
so it is that where insufficient particulars are mentioned in the grounds, the detenu is entitled to call for better particulars.
That is a right which flows from the Constitutional right to be afforded a reasonable opportunity to make representation.
Of course, where the grounds are vague.
no question would arise of the detenu asking for better particulars.
But the present case is not a case of a vague ground.
The ground is specific enough.
If the detenu wanted any more particulars such as the name of the intelligence officer or other information, he could have well asked for the particulars before making his representation.
That he never did.
It was not as if any privilege had been claimed by the Government in respect of the 640 intelligence reports.
In fact, we find that the intelligence reports were produced before the learned Judges of the High Court at the hearing of the Writ Petition there.
There was no complaint before us that the detenu or his Counsel wanted to peruse the reports and were denied the opportunity of doing so.
We do not think that the detenu could be said to have been denied a reasonable opportunity of making a representation merely because particulars which he neyer desired in respect of a ground which was not vague were not furnished to him.
We are unable to see any force in any of the submissions advanced on behalf of the detenu.
In the result, we reject the appeal and the writ petition.
[/INST]The draft Special Courts Bill 1978 introduced in the Parliament by a private member seeks to create adequate number of courts to be called specialcourts.
The Bill provides that a special court shall take cognizance of or try such cases as are instituted before it or transferred to it in the manner provided therein.
If the Central Government is of opinion that there is prima facie evidence of the commission of an offense alleged to have been committed during the period of Emergency by a person who held high public or political office in India and that the said offense ought to be debit with under the Act, it shall make a declaration to that effect in every case in which it is of that opinion.
A declaration made by the Central Government cannot be called in question in ;my court.
Clause (7) of the Bill provides that a special count shall be presided over by a sitting Judge of a High Court in India or a person who has held the office as a Judge of a High Court in India and nominated by the Central Government in consultation with the Chief Justice of India.
Clause 10(1) provides that notwithstanding anything contained in the Code of Criminal Procedure, an appeal shall lie as of right from any judgment or order of a special court to the Supreme Court of India both on fact and on law The President made a reference to the Supreme Court under article 143(1) of the Constitution for consideration of the question whether the Special Courts Bill 1978 or any of its provisions, if enacted would be constitutionally invalid.
Preliminary objections as to the maintainability of the reference were raised on the ground that (i) the reference was of a hypothetical and speculative character and was vague, general and omnibus; (ii) since the Parliament was seized of the Bill it is it6 exclusive function to decide upon the constitutionality of the Bill and if the court withdrew that question for its consideration and report, it would be encroaching upon the functions and privileges of the Parliament.
(iii ) if the reference were entertained it would supplant the salutary provision of article 32 of the Constitution, (iv) irrespective of the view expressed by this Court it would be open to the Parliament to discuss the Bill and pass or not to pass it with or without amendment, and (v) the reference raised purely political questions which the court should refrain from answering.
^ HELD: [per majority Y. V. Chandrachud, C.J., P. N. Bhagwati, R. section Sarkaria and section Murtaza Fazal Ali, JJ.] 1.
(a) It is not necessary that the question on which the opinion of this Court is sought under article 143(1) must have arisen actually: it is competent for the President to make the reference if he is satisfied that the question has 477 arisen or is likely to arise.
The plain duty and function of the Court under article 143(1) is to consider the question on which the reference i6 made and report to the President its opinion, provided the question is capable of being pronounced upon and falls within the powers of the Court to decide.
If, for any reason the Court considers it not proper or possible to answer the questions it would be entitled to return the reference by pointing out the impediments in answering it.
The right of this Court to decline to answer a reference does not flow merely out of the different phraseology used viz., "may" in clause (1) and "shall" in clause (2).
Even in matters arising under clause (2), the Court may be justified in returning the reference unanswered, if it finds for a valid reason that the question is incapable of being answered.
[502C F] (b) It cannot be said that the reference is of a hypothetical or speculative character on the ground that the Bill has yet to become an Act.
The assumption of every reference under article 143 has to be the continued existence of a context or conditions on the basis of which the question of law or fact arises or is likely to arise.
But the possibility of a change, even of a fundamental change, cannot make the exercise of the Presidential jurisdiction under article 143 speculative or hypothetical.
In the press It case there is no speculation about the existence of the Bill and there is nothing hypothetical about its contests as they stand today.
The Bill may undergo changes in future but so may the Constitution itself, including article 143, under which the President has made the reference to this Court.
The former possibility cannot make the reference speculative or hypothetical any more than the latter possibility can make it so.
The Special Courts Bill is there in flesh and blood for anyone to see and examine.
That sustains the reference, which is founded upon the satisfaction of the President that a question as regards the constitutional validity of the Bill is likely to arise and that the question i5 of such a nature and of such public importance that it is expedient to obtain the opinion of this Court upon it.
(503B E l (c) A reference which does not specify with particularity the ground or grounds on which the Bill or any of its provisions may be open to attack under the Constitution is difficult to answer because it gives no indication of the specific point or points on which the opinion of the Court is sought.
It is not proper or desirable that this Court should be called upon to embark upon a roving enquiry into the constitutionality of a Bill or an Act.
Such a course virtually necessitates the adoption of a process of elimination with regard you all reasonably conceivable challenges under the Constitution.
It is not expected of this Court, while answering a reference under article 143, to sit up and discover, article by article, which provision of the Constitution is most lawlessly to be invoked for assailing the validity of the Bill if it becomes a law.
Speculative opinions or hypothetical questions are worthless and it is contrary to principle, inconvenient and inexpedient that opinions should be given Up.l such questions at all.
Whenever a reference is made to this Court under Art 143 of the Constitution, care should be taken to frame specific questions for the opinion of the Court.
In the instant reference it is possible to consider specific questions as being comprehended within the terms of the reference but the risk that a vague and general reference ma.
,y be returned unanswered is real and ought to engage the attention of those whose duty it is to frame the reference.
505 F G, 507B] (d) The contention that since the Parliament is seized of the Bill, it is its exclusive function to decide upon the constitutionality of the provisions of the 478 Bill betrays a tctal lack of awareness of the scheme of.division of powers under the Constitution.
The Court is concerned, not with fanciful theories based on personal predilections, but with the scheme of the Constitution and the philosophy underlying it.
The principle is firmly and wisely embedded in the Constitution that the policy of law and the expediency of passing it are matters for the legislature to decide while, interpretation of laws and questions regarding their validity fall within the exclusive advisory or adjudicatory functions of Courts [507D E] (e) There is equally no force in the contention that if the Court withdrew the question of validity of the Bill for its consideration while the Bill was pending consideration before the Parliament, the Court would be encroaching upon the functions and privileges of Parliament.
The President has made a reference under article 143(1) and the Court is under a constitutional obligation to consider the reference and report to the President.
It cannot be said that any particular function or privilege of the Parliament is encroached upon by this Court.
The question whether the provisions of the Bill suffer from any constitutional invalidity falls within the legitimate domain of this Court.
Parliament can discuss and debate the Bill but the ultimate decision on the validity of a law has to be that of the Court, and not of the Parliament.
In the absence of any text or authority showing what the privileges of the British Parliament are in regard to the kind of matter before the Court it is impossible to say that there is a violation of the Parliament 's privileges.
The a,argument that it would be futile to consider the constitutional validity of the Bill because whatever view the Court might take it would still be open to the Parliament to discuss the Bill and to pass or not to pass it, proceeds on an unrealistic basis.
Although the opinion of this Court can neither deter the Parliament from proceeding with the Bill nor from dropping it, it cannot be said that even if the Court holds the Bill as unconstitutional the Parliament would proceed to pass it without removing the defects from which it is shown to suffer.
[508 F H; 510 B] (f) The argument that.
the reference raises a purely political question is without force.
The policy of the Bill and the motive of the mover may be to ensure a speedy trial of persons holding high public or political office who are alleged to have committed certain crimes relating to the period of emergency.
The President, however, has not asked the Court to advise him as to the desirability of passing the Bill or the soundness of the policy underlying it.
The question whether the Bill or any of its provisions are constitutionally invalid is not a question of political nature which the Court should restrain itself from answering The question referred by the President for the opinion of this Court raises purely legal and constitutional issues which is the right and function of this Court to decide.
[510 D F] Clauses 2, 6 and 10(1) of the Bill are within the legislative competence of the Parliament.
(522H ] 2.
(a) The challenge to the legislative competence of Provide to provde for the creation of Special Courts is devoid of substance.
By virtue of article 246(2) read with Entry 1 1A of the Concurrent List, Parliament has clearly the power to make laws with respect to the Constitution and organisation, that is to say, the creation and setting up of Special Courts.
Clause ' of the Bill, ;S therefore, within the competence of the Parliament to enact.
By cl.
10(1) of the Bill Parliament clearly has the competence to provide that notwith standing anything contained in the Code of Criminal Procedure, 1973 an appeal 479 shall lie as of right from any judgment or order of a Special Court to the A Supreme Court both on fact and on law.
A law which confers additional powers on the Supreme Court by enlarging its jurisdiction is evidently a law with respect to the "Jurisdiction and powers" of that Court.
[517 C D; 521 A B] (b) The argument that the constitution having provided copiously for an hierarchy of courts.
it is impermissible to the Parliament to create a court or a class of courts which do not fall within or fit in that scheme has no force.
There is nothing in the Constitution which will justify the imposition of such a limitation on the Parliament 's power to create special courts.
The words to Entry 11A are sufficiently wide to enable the Parliament not merely to set up courts of the same kind and designation as are referred to in the relevant provisions but to constitute and organize, that is to say, create new or special courts subject to the limitation mentioned in the entry as regards the Supreme Court and the High Courts.
[524 A&D] (c) It is not correct to say that by reason of the fact that the Special Courts will not have the constitutional status of High Courts nor are they District Courts within the meaning of article 235, the creation of Special Courts is calculated to damage or destroy the constitutional safeguards of judicial independence.
[524F] 3.
(a) The classification provided for by the Special Courts Bill is valid and no objection can be taken against it.
[537E] (b) The promulgation of emergency is not and cannot be a matter of normal occurrence in a, nation 's life.
Offenses alleged to have been committed during the period of emergency constitute a class by themselves and so do the persons who are alleged to have utilized the high public or political offices held by them as a cover for committing those offenses.
This Court is not concerned with the truth or otherwise of the allegations, the narrow question before it being whether, in the first instance, the classification is based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out.
The answer to that question can be one and one only, namely, that offenses alleged to have been committed during the emergency by persons holding high public or political offices in India stand in a class apart.
The cover of emergency provided a unique opportunity to the holders of such offices to subvert the rule of law and perpetrate political crimes on the society.
Others left out of that group had neither the means nor the opportunity to do so, since they lacked the authority which comes from official position.
Thus persons who are singled out by the Bill for trial before Special Courts possess common characteristics and those who fall outside that Group do not possess them.
[538 B; 540 A D] (c) Crimes falling outside the group are of a basically different kind and have generally a different motivation.
No advantage can be taken of the suppression of human freedom when the emergency is not in operation.
The suppression of people 's liberties facilitates easy commission of crimes when public criticism is suppressed, there is no fear of detection.
Crimes which are alleged to have been committed during emergency are oblique in their design and selective in their object.
They are generally designed to capture and perpetuate political power; and they are broadly directed against political opponents.
The holder of a high public office who takes a bribe does it to enrich himself.
Though, that deserves the highest condemnation, such crimes are not woven out of the warp and woof of political motivation.
Equal laws have to be 480 applied to all in the same situation and the legislature is free to recognize the degree of harm or evil.
Purity in public life is a desired goal at all times and in all situations.
But, this Court cannot sit as a super legislature and 6trike down the classification on the ground of under inclusion on the score that those others are left untouched, so long as there is no violation of constitutional restraints.
[540 E H) (d) If the classification is valid and its basis bears a reasonable relationship with the object of the Bill, no grievance can be entertained under article 14.
Classification necessarily entails the subjection of those who fall within it to a different set of rules and procedure, which may conceivably be more onerous than the procedure which generally applies to ordinary trials.
In almost all of the decisions bearing, on the questions which arise for consideration the especial procedure prescribed by the particular laws was distinctly more onerous than the procedure which governs ordinary trials.
But once a classify cation is upheld by the application of the dual test, subjection to harsher treatment or disadvantageous procedure loses its relevance, the reason being that for the purposes of article 14, unequals cannot complain of unequal treatment.
Classification necessarily implies discrimination between persons classified and those who are not members of that class.
It is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public.
The very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality.
Some of the provisions of the Bill, cast upon the accused before the Special Court, certain disadvantages as compared with the accused who a.re put up for trial before the ordinary courts, even as some other provisions give to them certain advantages which are denied to others.
[542 E H] The State of West Bengal vs Anywhere Ali Sarkar, ; ; Kathy Raning Rawat vs The State of Saurashtra, ; ; Lachmandas Kewalram Ahuja & Anr.
vs the Slate of Bombay, (1952] SCR 710; Syed Qasim Razvi vs The State of Hyderabad & Ors., ; Habeeb Mohamed vs The State of Hyderabad, [1953) SCR 661; Rao Shiv Bahadur Singh & Anr.
vs The State of Vindhya Pradesh, ; ; Kedar Nath Bajoria vs The State of West Bengal; , ; Asgarali Nazarali Singaporawalia vs The State of Bombay, ; ; referred to.
(e) The grouping1g together of persons who are alleged to have committed offences during the period of emergency with others who are alleged to have engaged themselves in screening certain offenders prior to the declaration of emergency is tantamount to clubbing together, in the same class, persons who do not possess common qualities or characteristics.
It is unquestionably reasonable for the legislature to thinly that the suppression of human liberties during the period of emergency furnished an opportunity to persons holding high public or political offices to commit crimes of grave magnitude which were calculated to destroy democratic values.
Offences alleged to have been committed during the period of emergency can be treated as sui generis.
The same cannot, however, be said of activities, which preceded the declaration of emergency.
Those doings were open to public criticism and were unprotected by the veil of emergency.
The validity of a classification should be tested by broad considerations, particularly when the charge is one of under inclusiveness.
But 481 persons possessing widely differing characteristics, in the context of their situation 1 in relation to the period of their activities, cannot by any reasonable criterion be herded in the same class.
The ante dating of the emergency, as it were, from June 25 to February 27, 1975 is wholly unscientific and proceeds from irrational considerations arising out of a supposed discovery in the matter of screening of offenders.
The inclusion of offences and offenders in relation to the period from February 27 to June 25, 1975 in the same class as those whose alleged unlawful activities covered the period of emergency is too artificial to be sustained.
[545 C H] (f) The answer to the question whether, those who are alleged lo have committed offences prior to the emergency can be put in the same class as persons who are alleged to have committed offences during the period of emergency, has to be in the negative.
[546 c] (g) The classification provided for by cl.
4(1) of the Bill is valid to the limited extent to which the Central Government is empowered to make the declaration in respect of offences alleged to have been committed during the period of emergency, by persons holding high public or political offices.
The classification is invalid in so far as it covers offences committed by such persons between February 27 and June 25, 1975.
No declaration can therefore be made by the Central Government in regard to those offences and offenders under the present classification.
[546 D] (h ) As regards those who are rightly grouped together, since the classification is valid, it is unnecessary for the purposes of article 14 to consider whether the procedure prescribed by the Bill is more onerous then the ordinary procedure.
The onerousness of the special procedure would be irrelevant in considerations arising under article 14, for the reason that the classification is valid (to the extent indicated).
But the Bill has got to meet the challenge of other provisions of the Constitution also, in so far as any particular provision is attracted.
(a) There is no provision in the Bill for the transfer of cases from one Special Court to another.
Absence of such a provision may undermine the confidence of the people in the Special Courts.
The manner in which a Judge conducts himself may disclose a bias; or a Judge may not in fact be biased and yet the accused may entertain a reasonable apprehension on account of attendant circumstances that he will not get a fair trial.
To compel an accused to submit to the jurisdiction of a court which, in fact, is biased or is reasonably apprehended to be biased is a violation of the fundamental principles of natural justice and a denial of fair play.
In yet another case expediency or convenience may require the transfer of a case, even if no bias is involved.
[549D E] (b) The provision for the appointment of a, sitting High Court Judge as Judge of the Special Court is open to no exception.
Though unquestionably retired Judges of High Courts occupy a position of honour and respect in society, one cannot shut one 's eyes to the constitutional position that whereas by article 217 a sitting Judge of a High Court enjoys security of tenure until he attains a particular age, the retired Judge will hold his office as a Judge of the Special Court during the pleasure of the Government.
The pleasure doctrine is subversive of judicial independence.
A retired Judge presiding over a Special Court, who display strength and independence may be frowned upon by the 482 Government and there is nothing to prevent it from terminating his appointment as and when it likes.
There is no force in the submission that if the appointment has to be made in consultation with the Chief Justice of India, the termination of the appointment will also require similar consultation.
The obligation to consult may not necessarily act as a check on an executive which is determined to remote an inconvenient incumbent.
,549 H; 550 B E] (c) Clause 7 of the Bill violates article 21 of the Constitution to the extent that a person who has held office as a Judge of the High Court can be appointed to preside over a. Special Court, merely in consultation with the Chief Justice of India.
[550 E] (d) Yet another infirmity from which the procedure prescribed by the Bill suffers is that the only obligation which cl. 7 imposes on the Central Government while nominating a person to preside over the Special Court is to consul the Chief Justice of India.
One must look at the matter not so much from the point of view of the Chief Justice of India, nor indeed from the point of view of the Government as from the point of view of the accused and the expectation and sensitivities of the society.
It is of the greatest importance that in the name of fair and unpolluted justice, the procedure for appointing a Judge to the Special Court, should inspire the confidence not only of the accused but of the entire community.
Administration of justice has a social dimension and the society at large has a stake in impartial and even handed justice.
[550 H: 551 A B] 5.
The fact that the trial is to be held by no less a person than a Judge of a High Court and there is a right of appeal to this Court are salient safeguards of the Bill.
[552 H] 6.
The question as to whether the opinion rendered by this Court in the exercise of its advisory jurisdiction under article 143(1) of the Constitution is binding as law declared by this Court within the meaning of article 141 of the Constitution, may have to be considered more fully on a future occasion but it is to be hoped that the time which has been spent in determining the questions arising in this reference shall not have been spent in vain.
Though it is always open to this Court to re examine the question as already decided by it and to over rule, if necessary the view earlier taken by it, insofar as all other courts in the territory of India are concerned, they ought to be bound by the view expressed by this Court even in the exercise of its advisory jurisdiction under article 143(1) of the Constitution.
In St. Xaviers College it was pointed (jut that even if the opinion given in the exercise of advisory jurisdiction may not he binding, it is entitled to great weight.
It would be strange that a decision given by this Court on a question of law in a dispute between two private parties should be binding on all courts in this country but the advisory opinion Should bind no one at all, even if, as in the instant case, it is given after issuing notice to all interested parties, after hearing everyone concerned who desired to be heard, and after a full consideration of the questions raised in the reference.
Almost everything that could possibly be urged in favour of and against the Bill was urged before this Court and to think that its opinion is an exercise in futility is deeply frustrating.
[553 D G] Estate Duty Bill, , 320, 332, 341; U.P. Legislative Assembly; , , 446 47; St. Xaviers College, [19751 1 SCR 173, 201 202; Attorney General for Ontario vs Attorney General 483 for Canada, , 589; Ram Kishore Sen vs Union of India, AIR 1965 Cal. 282; Chhabildas Mehta vs The Legislative Assembly Gujarat State, 1970 II Gujarat Law Reporter 729; The Province of Madras vs Messrs Boddu Paidanna, ; Central Provinces case, ; Constitutional Law of India by H. M. Seervai, 2nd Edn.
II, page 1415, para 25.68, referred to.
Investing the High Courts with jurisdiction to try cases under the Bill may, B: in the circumstances afford the best solution from every point of view.
The Chief Justices of High Courts will, in their discretion, assign and allocate particular cases to Judges of their courts.
To avoid delays and to ensure speedier trial, no other work may be assigned to the High Court Judge nominated by the Chief Justice to try a case or cases under the Bill.
This will obviate the nomination, by the Central Government, of a particular Judge to try a particular case.
[554 C D] Answers to the reference are as follows: (1) Parliament has the legislative competence to create Special Courts and to provide that an appeal shall lie as of right from any judgment or order of a Special Court to the Supreme Court.
Clauses 2 and 10(1) of the Bill are, therefore, within the Parliament 's legislative competence; [554G H] (2) The classification provided for in cl.
4(1) of the Bill is valid to the extent to which the Central Government is empowered to make a declaration in respect of offences alleged to have been committed during the period of Emergency by persons who held high public or political offices in India.
Persons who are alleged to have committed offences prior to the declaration of Emergency cannot validly be grouped along with those who are alleged to have committed offences during the period of Emergency.
It is, therefore not competent to the Central Government to make a declaration under cl. 4(l) of the Bill in respect of persons who are alleged to have committed offences between February 27, 1975 and June 25, 1975.
[555 A C] (3) The procedure prescribed by the Bill for the trial of offences in respect of which a declaration can be validly made by the Central Government under cl.
4(1) of the Bill is just and fair except in regard to the following matters: (a) the provision in cl. 7 of the Bill, under which a retired Judge of the High Court can be appointed as a Judge of the Special Court; (b) the provision in cl. 7, under which the appointment of a Judge lo the Special Court can be made by the Central Government in consultation with but without the concurrence of the Chief Justice of India; and (c) the absence of a provision for transfer of a case from one Special Court to another.
(d) The Bill is valid and constitutional in all other respects.
[555 D E] KRISHNA IYER.
J. (Concurring) 1.
Corruption and repression hijack development processes, and, in the long run, lagging national progress means ebbing people 's constitutional in constitutional means to social justice.
And so, to track down and 484 give short shrift to these heavy weight criminaloids who often mislead the people by public moral weight lifting and multipoint manifestoes is an urgent legislative mission partially undertaken by the Bill under discussion.
To punish such super offenders in top positions, sealing off legalistic escape routes and dilatory strategies and bringing them to justice with high speed and early finality, is a. desideratum voiced in vain by Commissions and Committees in the past and is a dimension of the dynamics of the Rule of Law.
This Bill, breaks new ground contrary to people 's resigned cynicism that all high powered investigations, reports and recommendations end in legislative and judicative futility, that all these valient exercises are but sound and fury signifying nothing.
[557 A B] 2.
(a) An Act of this nature, with the major changes mentioned by the Chief Justice to avert collision with Al t.
21 and with wider coverage to come to terms with article 14, is long overdue.
[577 G H] (b) These offenders perfectly fill the constitutional bill as a separate class which deserves speedy prosecution and final punishment by high judicial agencies if restoration of the slumping credence in the constitutional order and democratic development were to be sustained among the masses in Third World countries.
The Preamble to the Bill is revelatory of this orientation.
[558 C`l (c) There is a reasonable classification implicit in this legislation, but it is perilously near being under inclusive and.
therefore, unequal.
For it is a truncated projection of a manifestly wider principle that exalted offenders shall be dealt with by the criminal law with emergent speed so that the common man may knew that when public power is abused for private profit or personal revenge the rule of law shall rapidly run them down and restore the faith of the people in democratic institutions through speedy justice according to law.
It is in this sense that very important persons wielding large administrative powers shall, with quick despatch be tried an(l punished, if guilty.
Prompt trial and early punishment may be necessary in all criminal cases.
But, raw realism suggests that in a decelerating situation of slow motion justice there is a special case for speedier trial and.
prompter punishment where the offender sits at the top Or the administrative pyramid.
[558 H; 559 A C] (d) The Bill must fail morally if it exempts non Emergency criminals about whom prior Commission Reports, bear witness.
In this larger perspective, `emergency ' is not a substantial differential and the Bill nearly recognises this by ante dating the operation to February, 27, 1975 when there was no 'emergency '.
[559 G] 3.
The procedure of criminal courts is dilatory, there are appeals upon appeals and revisions and supervisory jurisdiction, baffling and baulking speedy termination of prosecutions, not to speak of the contribution to delay by the Administration itself by neglect of the basic necessaries of the judicial process.
Leaving V.V.I.P. accused to be dealt with by the routinely procrastinating legal process is to surrender to interminable delays as an inevitable evil.
Therefore, the Court should not be finical about absolute processual equality and must be creative in innovating procedures compelled by special situations.
[559H] 4.
(a) The idiom of article 14 is unmistakeable.
The power status of the alleged criminal the nature of the alleged crime vis a vis public confidence and the imperative need for speedy litigative finality, are the telling factors.
Every difference is not a difference. 'Speedy trial ' of offences of a public nature committed by persons who have held high public or political offices in the 485 country and others connected with the commission of such offences ' is the heart of the matter.
[560 D] (b) During that hushed spell, many suffered shocking treatment.
In the words of the Preamble of the Bill, civil liberties were withdrawn to a great extent, important fundamental rights of the people were suspended, strict censorship on the press was placed and judicial powers were curtailed to a large extent.
[560 F] Murthy Match Works etc etc.
vs The Asstt.
Collector of Central Excise, etc.
; , at 130, referred to.
(c) The objects and reasons are informative material guiding the court about the purpose of a legislation and the nexus of the differentia, if any, to the end in view.
Nothing about Emergency period is adverted to there as a distinguishing mark.
The clear clue is that all abuse of public authority by exalted public men, shall be punished without the tedious delay in the case of top echeolns.
[561 F] Mohammad Shujat Ali & Ors.
vs Union of India & Ors.
, ; at 477; State of Gujarat & Anr.
vs Shri Ambica Mills Ltd., Ahmedabad, [19741 3 SCR 760 at 782: referred to (d) Civil liberties were suppressed.
press censorship was clamped down and judicial powers were curtailed.
Even if liberty had not been curtailed, press not gagged or writ jurisdiction not cut down.
criminal trials and appeals and revisions would have taken their own interminable delays.
It is the forensic delay that has to be axed and that has little to do with the vices of the Emergency.
There is no law of limitation for criminal prosecutions.
B] (e) High powered public and political offenders are not a peculiar feature of the Emergency but has been a running stream for long and bids fair to flow on, therefore, a corrupt continuity cannot be cut up without better justification.
[565 E F] (f) The question, then is whether there is constitutional rationale for keeping out of the reach of speedy justice non emergency criminals in high public or political offices.
Such a Bill, were it a permanent addition to the corpus juris and available as a jurisdiction for the public to compel government, if a prima facie case were made out even against a minister in office, to launch a prosecution before a sitting High Court Judge, would be a wholesome corrective to the spreading evil of corruption in power pyramids.
[565 G H] (g) On constitutional principles, it is possible to sustain this temporary measure which isolates crimes and criminals during a pernicious period from the rest who share the same sinister properties.
When a salvationary alternative is available, the Court should opt for it when the attack is under article 14, provided the assumptions of fact desiderated by the alternatives are plausible, not preposterous.
The anatomy of the Emergency as X rayed in the Preamble, hi all dark shadows.
No court to call illegality to order or halt horrendous torture or challenge high handed unreason.
If this be a potential peril naturally a dangerous situation develops, and unaccountable power once unsheathed, the inauguration and escalation of such abuse becomes a compulsive continuum.
Constitutional tyranny is anathema to decent democracy.
In that state of nervous breakdown of the people, the right to go to court and prosecute an absolutist in authority for corruption dr misuse of power is illusory.
If 486 you speak up against crimes in high positions, if you complain to court about abuse of power, you may be greeted with prompt detention and secret torture, with judicial relief jettisoned and Press publicity loc jawed If these macabre maybes were assumed, there could be a noxious nexus between the Emergency season and the sinister crimes covered by this Bill.
It follows that a rexus between the differentia and the object is not too recondite to be inferred.
[567 A B] (h) The scary scenario of emergency excesses ' had a nexus with non action against persons in high against authority and escalation of corruption and repression then judicial checks on abuse had gone to sleep.
[563 A B] (i) The fabric of the offences before and during the Emergency is the same.
What validates the special legislation is the abnormality of the then conditions, the intensive phase of corrupt operations and the inexpediency of digging up old crimes.
Ambica Mills (supra) is the judicial justification for the classification.
[570C] 5.
(a) The Bill hovers periliously near unconstitutionality (article 14) in a certain respects, but is surely saved by application of pragmatic principles rooted in precedents.
Nevertheless, justice to social justice is best done by a permanent statute to deal firmly and promptly with super political offenders, since these 'untouchable ' and 'unapproachable ' power wielders have become sinister yet constant companions of Development in developing countries.
[570 E] Chaganlal Maganlal (P) Ltd. vs Municipal Corporation of Greater Bombay & Ors., [1975] I SCR 1, referred to.
(b) Basic fairness of procedure is necessary.
A valid classification with an intelligible differentia and intelligent nexus to the object is needed.
Within the class there should be no possibility of using a more burdensome procedure for one and a substantially different one for another.
Arbitrariness in this area also violates article 14.
[571 D] (c) Assuming that the facilities under the Bill and under the ordinary Code are equally fair, could the Government have indicated one or the other in the ordinary court or the special court on the basis of drawing lots or the first letter of their names, the colour of their skins or like non sense ? No.
The wisdom of article 14 will not tolerate such whim.
Classify or perish, is the classic test of valid exemption from inflexible equality under the Constitution.
[571 E F] (d) The sure solution to the problems raised by the Reference, consistently with the present object of the Bill, is to make the High Court the custodian of the new jurisdiction.
[571G] UNTWALIA, J. (concurring with the majority) 1.
In none of the earlier references answered either by the Federal Court or by this Court a, precedent is to be found resembling or identical to what happened in this Special Reference.
There is no harm in adopting the method of giving some suggestions from the Court which may obliterate a possible constitutional attack upon the vires of a Bill.
It may not be necessary or even advisable to adopt such a course in all References under article 143 of the Constitution.
But if in some it becomes expedient to do so, as in the instant one it was so, it saves a lot of public time and money to remove any technical lacuna from the Bill if the Government thinks that it can agree to do so.
The Bill by itself is not a law.
It would be a law would passed by the Parliament.
487 But even at the stag of the Bill when opinion of this Court is asked for, it A seems quite appropriate in a given case to make some suggestions and then to answer the Reference on the footing of acceptance by the Government of such of the suggestions as have been accepted.
Otherwise is incongruous for this Court to answer the Reference as it is without taking into account the concessions made on behalf of the Government vis a vis the suggestions of the Court.
It is manifest that all the three infirmities pointed out in the majority opinion m answer No. 3 vanish after the acceptance in writing by the Government that the three suggestions made by the Court vis a vis the alleged three infirmities, namely, 3(b), and 3(c) would be removed from the Bill.
[572 D A] 2.
The absence of a provision for transfer of a case from one Special Court to another, makes the procedure unjust or arbitrary.
But the alleged infirmities, 3(a) and (b), do not make the procedure unjust or arbitrary.
There is no question of the procedure being unjust or arbitrary in respect of any of the three infirmities (a), (b) and (c) enumerated in answer 3 in view of the acceptance by the Government of India of the suggestions emanating from the Court during the course of the hearing of the Reference.
The Reference, therefore, stands amended in view of those concessions and the court is now required to answer the amended Reference which means the Reference as if the Bill as proposed incorporates the three concessions made by the Government.
Thus the procedure prescribed in the Bill, undoubtedly, becomes just and fair and no longer remains arbitrary in any sense.
[573 C D] SHlNGHAL, J. (Dissenting) Clauses 5 and 7 of the Bill ale unconstitutional and invalid.
[573H] 1.
(a) The reason given in the Statement of Objects and Reasons of the Bill for excluding the ordinary criminal courts from trying the class of offences referred to therein is congestion of work and not their inferior status or in capacity to deal with those cases.
That object of the Bill would have been served by the creation of additional courts of the same category as the ordinary criminal courts and the making of any procedural changes which may have been considered necessary in that context to exclude avoidable delay in the trial.
1574 F] (b) There would have been nothing unusual if such additional courts had been created to save the ordinary criminal courts, from the burden of more work and to bring the contemplated prosecutions to speedy termination.
That was permissible under the existing law.
Even if some procedural changes were considered necessary, they could have been worked out within the framework of the law.
The special courts envisaged in the Bill are, however, courts, the like of which has It been provided in the Code of Criminal Procedure or any other law and are in fact unknown to the Criminal law of the country.
[574 G] (c) The Constitution contemplates that all civil and criminal courts in State, other than the High Court, shall be no other than the Subordinate Courts over which the High Court shall exercise the fullest superintendence and control and that the presiding officers of those courts shall be under the control of the High Court and of no other authority.
That is necessary to ensure the independence of every court dealing with civil and criminal matters.
[576 D] (d) It may be permissible to create or establish civil and criminal courts in a state with designations other than those expressed in article 236, or any existing designation in the Codes of Civil and Criminal Procedure.
but that is far 488 from saying that it is permissible to establish a hierarchy of courts other than that envisaged in the Constitution.
[576 E] 2.
(a) The Constitution has made ample and effective provision for the establishment of a strong, independent and impartial judicial administration in the country with the necessary complement of civil and criminal courts.
it is not permissible for Parliament or a state Legislature to ignore or bypass that scheme of the Constitution by providing for the establishment of a civil or criminal court parallel to a High Court in a state or by way of an additional or extra or a second High Court or a court other than a court subordinate to the High Court.
Any such attempt would be unconstitutional and would strike at the independence of the judiciary which he so nobly been enshrined in the Constitution and so carefully nursed over the years.
[576 G] (b) The Constitution provides for the appointment of district judges and other judicial officers in the States.
In a large number of cases this Court had declared that it is the High Court which is the sole custodian of the control over the State Judiciary which in fact is the life blood of in independent judicial administration and the very foundation of any real judicial edifice The Constitution has not considered even the existence or continuation of Magistrates who are outside the control of the High Court to be desirable.
It is beyond doubt that the Constitution does not permit the establishment of a criminal court of the status of a court presided over by a District Judge which is not subordinate to the High Court and does not permit the establishment of a court similar to the High Court or a court parallel to the High Court.
[577 C; 578 A B] The State of West Bengal vs Nripendra Math Bagchi, ; , Chandra Mohan and others, vs State of U.P. & Ors., ; State of Assam etc.
vs Ranga Mohammad & Ors., [1967] J SCR 454; The State of Orissa vs Sudhansu Sekhar Misra & Ors., [968] 2 SCR 154; State of Assam & Anr.
N. Sen & Anr., ; ; Shamsher Singh & Anr.
vs State of Punjab ; ; High Court of Punjab & Haryana vs State of Haryana & Ors.
etc., [1975]) SCR 365; State, of Haryana vs Inder Prakash Anand, ; ; Chief Justice of Andhra Pradesh & Ors.
vs L. V. A. Dixitulu & Ors. referred to.
(c) Neither section 6 of the Code of Criminal Procedure 1973 nor section 6 of the Criminal Law Amendment Act, 1952 justifies the argument that special courts of the nature contemplated in the Bill would be created under the scheme of the Constitution.
Although section 6 of the Code of Criminal Procedure states that the five classes of criminal courts stated in it shall be in addition to the High Court and courts that may be constituted under any law, it cannot be said that it pro ides tor the constitution of courts parallel to or on the same footing as the High Court or of criminal courts which are not subordinate to the High Courts Similarly, special judges appointed under section 6 of the Criminal Law Amendment Act are subordinate to the High Court and fit in the scheme of the independence of the judiciary envisaged by the Constitution.
[578 E Fl (d) The attempt to justify the creation of special courts by reference to Part XIVA of the Constitution which provides for establishment of administrative Tribunals cannot be sustained because such Tribunal are not meant for the trial of offences referred to in the Indian Penal Code.
They may well be said to be quasi judicial Tribunals, [579 D] 489 (e) The Special Courts contemplated by clause 2 of the Bill will not be on the same.
footing as the High Courts and will, to say the least, be lesser or inferior courts.
1579 E] (f) Clause 7 of the Bill provides that a special court shall be presided over by a "sitting judge" of a High Court, but it will not be permissible or proper to do so as that court is lesser and inferior to a High Court.
In all probability, sitting judges of High Courts will refuse to serve as presiding judges of special Courts, and there is no provision in the Constitution under which they can be compelled, or ordered against their will, to serve there.
That eventuality will make the provisions of the Bill unworkable.
At any rate, the possibility that the sitting High Court Judges may not agree to serve as presiding judges of Special Courts is real, and their very refusal will embarrass the judicial administration and lower the prestige of the judiciary for clause 7 of the Bill provides for their nomination in consultation with the Chief Justice of India.
[579 F H] 3.
(a) Equality before the law, or speaking in terms of the present controversy, equality in criminal justice, is the universal goal of all democratic forms of government, for no one can ever deny that all persons charged with crime must, in law, stand on the same footing at the Bar of justice.
That equality should be assured not only between one accused and another, but between the prosecution and the accused.
That is what the Constitution has carefully, assuredly and fully provided for every citizen.
Article 21 is, by itself, enough to bring that out.
[580 C D] (b) In order to fulfil the guarantee of article 21 the procedure prescribed by law for the trial of criminal cases has to be fair, just and reasonable, and not fanciful, oppressive or arbitrary.
Taken together, clauses S, 7 and 8 of the of Bill provide for the trial of the accused only by special courts to be presided over by a judge nominated by the Central Government and clauses 4, 5 and 7 vest the power of designating the special court in which an accused is to be tried exclusively in that Government.
The Bill enables the Central Government to decide which of the accused will be tried by which of its nominated judges.
Thus if several special courts are created by the Central Government in Delhi and they are all presided over by judges nominated by the Central Government, the power of nominating the judge for any particular case treble in Delhi shall vest in the Central Government.
Such a procedure cannot be said to be fair, just and reasonable within the meaning of article 21 and amounts to serious transgression on the independence of the judiciary.
[581 G; 587 D F] (c) The question of the Central Government or the State Government nominating a judge of the Supreme Court or of the High Court for dealing with a particular case does not and cannot arise.
So too in regard to the judges and magistrates of the subordinate courts, sufficient safeguards have been provided, in the relevant laws for their appointment by the High Court.
It is not permissible for the executive to appoint a particular judge or magistrate to preside over the trial of a particular accused under the Code of Criminal Procedure.
That is fair, just and reasonable and relieves the accused of any possible oppress on.
1583 A Bl (d) Moreover in the case of trials before special courts, the trial by the fiat of a successor government, however, justified, is noticed with scepticism The suspicion that the trial is motivated by political considerations, that it would not be just and fair or that it would lead to injustice, would be lurking 13 978SCI/78 490 in the mind of the accused.
It is therefore necessary that everyone concerned, including the accused, should be convinced that the executive had the best of intentions in ordering the trial and had provided for a fair and straight forward procedure, and the cleanest of judges, for the trial in an open and fearless manner.
[583 C&E] (e) If the result of the trial has to carry conviction with the people as a whole, and is meant to acquaint them with the true character of the persons who have committed the offences for the survival of the democratic institutions and cleanliness of the political life as professed in the statement Of Objects and Reasons of the Bill, it is in the interest of those making the declaration under clause 4 to convince everyone, including the accused, that the trial is not spectacular in purpose and does not expose those facing it to a risk greater the that taken by any other accused at an ordinary trial, under the ordinary law.
Human dignity is a concept enshrined in the Constitution and this treasure should be the priceless possession and solid hope of all our fellow citizens.
including those who have to face trials for offences charged against them.
[583 F H] (f) An attempt, like the one made in the present Bill to usurp an important judicial power and vest it in the executive is a serious inroad of the Independence of the judiciary and is fraught with serious consequences.
It has, there fore, to be put down at the very inception for it may otherwise give rise to a prospect too gruesome to envisage and too dangerous to be allowed to have the sanction of law.
[584 H] Liyanage & Ors.
vs Regina ; referred to.
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<s>[INST] Summarize the judgementtion (Criminal) No. 669 of 1986.
(Under Article 32 of the Constitution of India).
R.K. Jain, R.P. Singh and Rakesh Khanna for the petitioners.
S.C. Mahanto, C.V.S. Rao and Mahabir Singh for the Respondents.
The Judgment of the Court was delivered by B.C. RAY, J.
The petitioners who are life convicts in this writ petition have assailed a D.O. Letter No. 4665/1983 GI/G4/R.10 84 dated 24.4.1985 issued by the re spondent No. 3, Inspector General of Prisons, Haryana, Chandigarh intimating to the Superintendent of Jail that convicts who are on bail and whose sentences are suspended, are excluded from the remissions systems in view of the provisions of Section 637 of the Punjab Jail Manual on the ground that the aforesaid letter purports to deprive the petitioners from the benefit of remissions of 19 months and 12 days granted to them during the period they were on bail, while counting the total period of sentence including remis sions undergone by them in order to consider their cases of pre mature release from imprisonment.
1110 The petitioner No. 1, Jai Prakash was convicted by the District and Sessions Judge, Bhiwani, on December 4, 1975 under Section 302 of the Indian Penal Code and he was award ed life imprisonment.
Against this judgment and order of the Sessions Judge he preferred an appeal before the High Court of Punjab and Haryana and he was granted bail on 12.1.1976.
This appeal, however, was dismissed on 28.9.1978 and he was arrested on 29.1.1979 while he was going to the Court to surrender himself to serve out the remaining part of the sentence as stated by him.
The petitioner has stated that during the period he was on bail he earned remission of 19 months and 12 days.
Similarly, the petitioner Nos. 2 to 5 were also convict ed by the District and Sessions Judge, Bhiwani, on 23.3. 1976 in a case under Section 302 of the Indian Penal Code and they were awarded life imprisonment.
Petitioner Nos. 2 to 5 were directed to be released on bail by the High Court of Punjab and Haryana during the pendency of their appeal by order dated 7.4.1976.
The appeal was however dismissed by the High Court on 8.12.
1978 and they surrendered themselves before the Magistrate on 16.2.
1979 for serving out their remaining part of sentence.
The petitioner Nos. 2 to 5 were also given remissions of 19 months and 12 days during the period they remained on bail.
It has been stated that though all the petitioners were given remissions of 19 months and 12 days and they were under the impression that the period of remission earned by them would be taken into consideration under para 637 of Punjab Jail Manual while computing their sentence under Para 516 B of the Punjab Jail Manual.
They have now been informed by the respondent No. 3 as per his letter dated 24.4.1985 addressed to the Superintendent, District Jail, Bhiwani, respondent No. 2, that the convicts who were on bail and whose sentences were suspended would be excluded from the remissions purported to be earned by them while they were on bail.
The petitioners have submitted that a number of pris oners to whom remissions were given during the period when they were on bail were also released by the State Government after taking into consideration the remissions granted to them during the period when they were on bail or that their sentence had been suspended.
Names of six persons were mentioned in the petition who were pre maturely released.
It has been submitted on behalf of the petitioners that they are entitled to have their period of remissions earned by them during the period they were on bail, to be taken into account for consideration of their pre mature release under para 637 of the Punjab Jail Manual.
It has been further submitted that the aforesaid letter issued by the respondent No. 3 laying 1111 down guidelines and instructions to respondent No. 2, that is, Superintendent of District Jail, Bhiwani, is contrary to the provisions contained in para 637 of Punjab Jail Manual.
The petitioners have also stated that since they surrendered themselves before the jail authority after dismissal of their appeals by the High Court they are entitled to have the period of remissions earned by them to be counted while considering the total period of sentence undergone for their premature release.
A counter affidavit affirmed by the Superintendent of District Jail, Bhiwani has been filed.
It has been stated therein that no remission of period of sentence is permissi ble under paragraph 637 or any other provision of the Punjab Jail Manual (as applicable in Haryana) for the period that the convict remains on bail or his sentence is otherwise under suspension.
Even the benefit of special remissions allowed to convicts under State Government orders on visits of the Hon 'ble Minister for Jail (though such orders did result in anomalous situations and on the basis of experi ence the Government is inclined to restrict such orders) cannot be available to the petitioners.
It has been further averted that a perusal of the relevant orders of 1977 would show that the orders were applicable to prisoners who had been convicted before the date of visit of the Hon 'ble Minister in 1977, were released on bail subsequently and surrendered in the jail for undergoing the unexpired portion of the sentence.
The petitioners are not entitled to the benefit claimed as they had not surrendered in the jail for undergoing the remaining period of the sentence.
The appeal of petitioner No. 1 had been dismissed on 28.9.1978 but he did not surrender for several months.
Ultimately, warrants for his arrest were issued by the Chief Judicial Magistrate on 24.1.
1979 and he was arrested and sent to jail on 29.1.
According to the petitioners ' own averments in para 2 of the petition, the other four writ petitioners remained out of jail for more than two months after the dismissal of their appeal.
It is evident that they had not surrendered in the jail for undergoing the remaining period of sentence immediately after dismissal of their appeals.
It has been further averted that even if any remission had been ordered inadvertently against relevant rules, it is in the interest of administration of justice that the mistake is rectified and not perpetuated by taking further action on its basis.
It has also been stated that similar cases of remission earned during the period of bail came up before the High Court of Punjab and Haryana and it was held by the High Court that special remissions were not available to the convicts who had not surrendered voluntarily on the expiry of the bail period.
It has been stated further that non surrender of the convict for 1112 several months after dismissal of appeal by itself showed that the surrender was not voluntary and such a convict did not merit the remission and an interpretation different from that would defeat the administration of justice.
It has been averred that petitioners could not avail of the remissions ordered erroneously and inadvertently not in accordance with the relevant rules.
As regards the six specific cases men tioned, it has been stated that the benefit was given to Tuhi Ram and Dig Ram only but not in the cases of the other four convicts referred to in the petition.
They were denied the benefit as it is being done to the petitioners.
Para 637 of the Punjab Jail Manual which is relevant for consideration of the question raised, is set out herein: "MANUAL FOR THE SUPERINTENDENCE AND MANAGEMENT OF JAILS IN THE PUNJAB 637.
Subject to the provisions of paragraph 634 remission under paragraph 635 shall be calculated from the first day of the calendar month next following the date of the prison er 's sentence: any prisoner who, after having been released on bail or because his sentence has been temporarily suspended is afterwards re admitted in the jail, shall be brought under the remission system on the first day of the calendar month next following his re admission, but shall be credited on his return on jail with any remission which he may have earned previous to his release on bail or the suspension of his sentence.
Remission under paragraph 636 shall be calculated from the first day of the next calendar month following the appointment of the prisoner as convict warder, convict overseer or convict night watchman.
" On a reading of the aforesaid provision it is manifest that a prisoner who has been released on bail or whose sentence has been temporarily suspended and has afterwards been re admitted in jail will be brought under remission system on the first day of the calendar month next following his re admission.
In other words, a prisoner is not eligible for remission of sentence during the period he is on bail or his sentence is temporarily suspended.
The submission that the petitioners who were temporarily released on bail are entitled to get the remission earned during the period they were under bail, is not at all sustainable.
As such the remissions that were inadvertently given to these petition ers cannot be taken into account in considering the total 1113 period of sentence undergone by them while considering their premature release from imprisonment under paragraph 637 of the Punjab Jail Manual.
It also appears from the order of the Governor of Haryana dated 14th August, 1977 annexed as Annexure 'R1 ' to the writ petition that the special remis sion was granted by the Governor of Haryana to only those prisoners who were in confinement on 14th August, 1977 on the occasion of the first visit of the Chief Minister of Haryana to jail and who had been subsequently released on bail.
It is pertinent to set out paragraph 2 of the said order: "All those prisoners who have been convicted before the 14th August, 1977 but subsequently released on bail shall be enti tled to the remission only if they surrender in the jail for undergoing the unexpired portion of their sentence.
" The petitioners though convicted prior to 14th August, 1977 that is the date of visit of the Hon 'ble Minister to the Jail were granted bail before the said date.
As such they are not entitled to the said remission in accordance with the order of Governor of Haryana.
Secondly, all these petitioners did not surrender in the jail for undergoing the unexpired portion of their sentences immediately after their appeals were dismissed by the High Court.
On the other hand, the petitioner No. 1 whose appeal was dismissed on 28.9.
1978 did not surrender either to the jail or to the Magis trate for serving out the remaining part of sentence till he was arrested on 29.1.
1979 in pursuance of the warrant issued by the court.
The petitioner Nos. 2 to 5 who were released on bail by the High Court during the pendency of their appeal did not surrender in the jail immediately after their appeal was dismissed on 8.12.
They surrendered themselves to the Magistrate only on 16.2.
1979 to serve out the remaining part of their sentence.
As such, it cannot be said that they have surrendered in jail for undergoing their unexpired period of sentence immediately after their appeals were dismissed and so they are not eligible for remissions as envisaged in the said Government order dated 14.8.
1977 referred to hereinbefore.
It appears that the respondent No. 3.
the Inspector General of Police, Haryana, Chandigarh issued a letter being D.O. No. 4665/ 1983 GI/G4/R. 10 84 dated 24.4.
1985 to all Superintendents of Jails including the Superintendent of District Jail, Bhiwani, drawing their attention to paragraph 2 of the letter dated 11/14 1 1985 from the State Government to the Jail Department which is to the following effect: 1114 "Attention of all Superintendents of Jails is drawn to para 4 of the Government letter under which Government have affirmed that convicts who are on bail and whose sentences have been suspended are excluded from the remissions systems in.
view of the provisions of para 637 of the Punjab Jail Manual.
" This D.O. letter has been annexed as Annexure 'A ' to the writ petition.
The letter dated 11/14 January, 1985 issued by the Gover nor of Haryana to the respondent No. 3 is an nexed as Annexure 'R5 ' to the writ petition.
The relevant excerpt of it is set out herein below: "It has been decided that such remissions will be granted only in the following cases: (i) All the convicts, convicted by the civil courts with criminal jurisdiction in the Haryana State and were present in the jails on the date and time of the visit of the Jail Minister or other high dignitaries.
(ii) All the convicts who were on parole/furlough from that jail on the date and time of the visit of the Jail Minister subject to the condition that they surrender at the Jail on the due date after the expiry of parole/furlough period for undergoing the unexpired portions of their sentences.
. . . 4.
Your attention is also invited to para 637 of the Punjab Jail Manual which provides that convicts who are on bail and whose sentence has been suspended are excluded from the remission system.
" It is clear and evident from this letter that convicts who were on parole from jail on the date and time of the visit of the Chief Minister to the Jail will be granted remissions on condition that they surrender at the jail on the due date after expiry of parole period for undergoing the unexpired period of their sentence.
This means that a convict in order to get the benefit of remission as directed by the said order issued under Article 16 1 of the Constitu tion of India has to surrender voluntarily at the Jail after expiry of bail.
In the instant case, petitioner No. 1 did not surrender in jail or before the Magistrate after his appeal was dismissed by the High Court and the petitioner No. 1 had been 1115 arrested under warrant of arrest as he did not surrender in jail after his appeal was dismissed.
Petitioners who were on bail also did not surrender immediately after dismissal of their appeal but they surrendered themselves after two months of dismissal of their appeal.
In such circumstances, it cannot be said that the petitioners are entitled to the remissions as envisaged in the said Government order dated 11/14 January, 1985.
The letter of the respondent No. 3 the Inspector General of Prisons, Haryana, Chandigarh i.e.D.O.
Letter No. 4665/1983 GI/G4/R10 84 dated 24.4.1985 is quite in accordance with the Government order made on 11/14 Janu ary, 1985 and the respondent No. 3 in fact quoted paragraph 2 of the said letter which contains the necessary requisite for grant of remissions from sentence.
The said D.O. letter of the respondent No. 3 cannot therefore be challenged as in violation of paragraph 637 of the Punjab Jail Manual nor it is contrary to the directions contained in the aforesaid order.
In the premises aforesaid, this writ petition is dis missed.
There will be no order as to costs.
N.P.V. Petition dis missed.
[/INST]Upon the respondent tenant committing default in payment of rent from June, 1984, the appellant landlady, after serving a notice determining the tenancy with effect from 31st January, 1985 and calling upon him to deliver posses sion of the premises in question, filed a suit in the High Court for recovery of possession, arrears of rent at the rate of Rs. 1,400 per month and mesne profits/damages at the rate of Rs.7,800 per month from the date of termination of the tenancy.
The respondent filed an application praying that the plaint be taken off from the file of the High Court and returned to the appellant for filing the same in the proper Court.
The High Court, accepting the plea of the respondent that under the provisions of the West Bengal Premises Tenancy Act, 1956, the expression 'tenant ' included a person continuing in possession of the accommodation even after the termination of his contractual tenancy and on such termination the possession of a tenant did not become wrong ful, held that the appellant was not entitled to claim mesne profits/damages aggregating to Rs.78,000 and therefore, the suit should have been valued at Rs.42,000 and, since no suit the value of which was less than Rupees one lakh could have been filed in the High Court, directed that the plaint be returned to the appellant for presentation to the proper Court.
Allowing the appeal and directing the High Court to proceed with the hearing of the suit.
HELD: On the facts and in the circumstances of the case the High Court was in error in prejudging the issue relating to the right of the appellant to claim mesne profits/damages and in directing that the plaint should be returned for presentation to the proper Court.
[797C D] (i) The principles which regulate the pecuniary jurisdiction of 793 civil courts are well settled.
Ordinarily, the valuation of a suit depends upon the reliefs claimed therein and the plaintiff 's valuation in his plaint determines the Court in which it can be presented.
Under section 15, C.P.C., every plaint should be instituted in the Court of the lowest grade compe tent to try it.
The Court always has the jurisdiction to prevent the abuse of the process of law and the plaintiff cannot invoke the jurisdiction of a Court by either grossly over valuing or grossly under valuing a suit.
Under r. 10 of 0.7, C.P.C., the plaint can be returned at any stage of the suit for presentation to the Court in which the suit should have been instituted.
[796A C] (ii) In the instant case the appellant has claimed a decree for Rs.78,000 for the period between 1st February, 1985 and 30th November, 1985 on the footing that the re spondent 's possession was unauthorised or illegal and he was liable to pay mesne profits or damages.
The question whether the appellant would be entitled to a decree for mesne prof its/damages at the rate of Rs.7,800 per month or at any other rate after the termination of the tenancy is a matter which has to be decided in the suit and it could not have been disposed of at a preliminary stage even before the trial had commenced.
That question has to be decided at the conclusion of the trial along with other issues arising in the suit.
Having regard to some of the decisions on which reliance is placed by the appellant in the course of the appeal, the matter is not free from doubt and the claim for mesne profits/damages is neither palpably absurd nor imagi nary.
It needs judicial consideration.
[796D G] (iii) The acceptance of the view put forward by the respondent may lead to encouraging a tenant who has forfeit ed his right to the tenancy to carry on a dilatory litiga tion without compensating the landlord suitably for the loss suffered by him on account of the unreasonable deprivation of the possession of his premises over a long period until he is able to get possession of the premises through the Court.
It cannot, therefore, be stated at this stage that the claim for mesne profits/ damages had been made without good faith and with the sole object of instituting the said suit before the High Court even though it had no jurisdic tion to try it.
[796G H; 797A]
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<s>[INST] Summarize the judgementminal Appeal No. 131 of 1967.
Appeal from the judgment and order dated January 9, 1967 of the Judicial Commissioner 's Court Tripura, Agartala in Criminal Appeal Case No. 8 of 1963.
M. K. Ramamurthi, J. Ramamurthi and Vineet Kumar, for the appellant.
H. R. Khanna and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by Dua, J.
Pursuant to a complaint by Shri Joy Shanker Bhattacharyya, the appellant Sushil Kumar Gupta was tried in the court of Assistant Sessions Judge, Tripura on the following charges "(1) That you in between the month of September, 1958 and July, 1959 at Agarwala P. section Kotwali being a servant viz. Secretary in the employment of the Tripura Central Marketing Co operative Society Ltd., and in such capacity entrusted with certain property to wit a total sum of Rs. 18,200 being the fund of the Society committed criminal breach of trust in respect of the said property and thereby committed an offence punishable under section 408 of the Indian Penal Code and within the cognizance of this Court.
Secondly : that you in between the period of September, 1958 and July, 1959 at the same place being a Secretary in the employment of the Tripura Central Marketing Co operative Society Ltd., wilfully and with intent to defaud, falsified certain books and other relevant papers to wit cash book etc., which belonged to the said society, your employer and thereby committed an offence punishable under section 477 A of the Indian Penal Code and within the cognizance of this Court.
" As the appellant was tried jointly along with five others who have been acquitted and as if was argued on behalf of the appellant that in view of the acquittal of his co accused the appellant 772 also should have been acquitted, the charges against them may also be reproduced : "That Sushil Kumar Gupta, Secretary of the Tripura Central Marketing Co operative Society Ltd., in between the period of September, 1958 and July, 1959 at Agartala p.s.
Kotwali committed the offence of criminal breach of trust in respect of Rs. 18, 200 and that you the aforesaid persons at the same place and time abetted the said Shri.
Sushil Kumar Gupta in the commission of the same offence of criminal breach of trust in respect of the said amount which was committed in consequence of your abetment and that you have thereby committed an offence punishable under section 109, I.P.C. read with section 408, I.P.C. and within my cognizance.
Secondly : that Shri Sushil Kumar Gupta, Secretary of the Tripura Central Marketing Co operative Society Ltd. in between the period of September, 1958 and July, 1959 at Agartala p.s.
Kotwali committed the offence of falsification of accounts and that you the aforesaid persons at the same place and time abetted the said Shri Sushil Kumar Gupta in the commission of the same offence of falsification of account which was committed in consequence of your abetment and that you have thereby committed an offence punishable u/s 109, I.P.C. read with section 477 A of the I.P.C. and within my cognizance.
" The trial court acquitted all the six accused persons.
An appeal against the acquittal of all of them was preferred under section 417 (3), Cr.
P.C. in the court of the Judicial Commissioner, Tripura.
That court allowed the appeal against section K. Gupta only and dismissed it as against the others.
section K. Gupta was held guilty of the offence of criminal breach of trust under section 408, I.P.C. and also of the offence of falsification of accounts under section 477 A, I.P.C. regarding the sum of Rs. 18,200.
He was sentenced under each count to undergo rigorous imprisonment for one year, the sentences to be concurrent.
The convict section K. Gupta has appealed to this Court on certificate granted under article 134(1)(c) of the Constitution. 'Me order granting the certificate does not disclose on its face what exactly the difficulty of the court of the Judicial Commissioner is and precisely what question of outstanding difficulty this Court is desired to settle.
On behalf of the appellant his learned advocate Shri Ramamurthy, however, addressed elaborate arguments questioning the order of the learned Judicial Commissioner allowing 773 the appeal against the appellant section K. Gupta 's acquittal.
His, challenge was based on three main contentions.
The fourth point that the learned Judicial Commissioner erred in law in considering exhibit P 59 to be admissible in evidence, in disagreement with the trial court, according to which it was hit by section 24, Indian Evidence Act, was not allowed to be argued in this Court because this ground was not taken in the grounds of appeal.
The first contention seriously pressed on behalf of the appellant is that in view of the acquittal of his co accused who were tried along with him the court of the Judicial Commissioner was wrong in law in holding that there was falsification of accounts and embezzlement of the funds of the Tripura Central Marketing Co operative Society.
This submission is unacceptable.
The acquittal of the other co accused as affirmed by the learned Judicial Commissioner is not based on the finding that there was no falsification of accounts and no embezzlement of the funds of the Society.
section K. Gupta, appellant, it may be pointed out was the Secretary of the Society since April 13, 1957 when the first general meeting of the Society was held and was in that capacity entrusted with its funds.
He worked as such till August 10, 1960.
He was accordingly responsible for the cash and maintenance of current accounts of the Society during the period in question.
Turning to the Bye laws of the Society, bye law No. 41 prescribes the duties of the Secretary.
According to this bye law the Secretary has inter alia : "(3) To make disbursement and to obtain vouchers and to receive payments and pass receipts, under the general or special orders of the Board of Directors on this behalf from time to time.
(4) To keep all accounts and registers required by the rules.
(13) To countersign cash book in token of the balance being correct and to produce the cash balance.
whenever called upon to do so by the Chairman or any person authorised to do so.
In the absence of the Secretary the Board of Directors may authorise the Manager to perform the duties of the Secretary.
The Board of Directors may also authorise the Manager to perform any of the duties of the Secretary to facilitate, the working of the Society.
Receipts passed on behalf of the Society shall be, signed by the Secretary.
Share certificates and other 774 documents shall be signed by the Secretary and one member of Board of Directors jointly.
" Byelaw 42 contains directions I regarding advances against proof goods and clause (1) of this byelaw provides : "(1) The Board of Directors shall, at the beginning of the session, fix the amount of advance, indicating the percentage of the market price of produce or goods pledged with the society, that may be granted to a member.
Such limits may be fixed for different com modities and varied from time to time according to fluctuation in markets or otherwise.
It shall also be competent for the Board of Directors to call on a borrower at any time before the due date to repay a portion of the loan or advance issued or to produce additional security for the outstanding loan or advance within a time fixed by them, if in their opinion, there is fall or likely to be a fall in the market value of the produce or goods pledged.
" Under byelaw 44 loans may be granted to members in suitable cases on such terms and conditions as regards individual and maximum limits, repayment of loan,, rate of interest thereon etc., as may be fixed by the Board of Directors from time to time.
According to the learned judicial Commissioner "the overall picture" emerging .from the evidence on the record, to quote his own words, it "(1) A sum of Rs. 18,200/ was said to have been disbursed in 1958 and 1959.
(2) It was said to have been repaid in the last week of June, 1959 towards the end of the co operative year of 1959 and long after the maximum period of 6 months allowed by rule 42 (4) of the byelaws.
(3) The same amount was again said to have been ,disbursed in a few days in the first week of July commencing with the next cooperative year (1959 60).
(4) Except the 2nd and 4th respondents, the others were not members of the Co operative Society and in this regard the 1st respondent disregarded sub rule (1) ,of r. 42 of the byelaws.
(5) The 1st respondent did not obtain any general or special orders of the Board of Directors to make the disbursements and violated sub rule (1) of r. 42 of Ext.
P 41. 775 (6) Ext.
P 56 and P 59 show that the alleged collections of the monies in June 1959 was false and that the accounts were got up.
(7) The fact that a discount of Rs. 10/ was paid to cash a cheque on 29 6 1959 shows that the society had no funds on that day.
(8) None of the alleged loanees was a Jute grower and no jute was deposited in the godowns of the society before the advances were made and in this regard the mandatory provisions of sub r.
(2) of r. 42 were also disregarded by the 1st respondent.
(9) A number of adjustments were made in the Accounts to show that the sum of Rs. 18,200/ was disbursed.
(10) The three persons to whom ultimately the amounts were said to have been disbursed are interested in the 1st respondent.
The 4th respondent C. C. Das Gupta is a relation of the 1st respondent and proved by P. Ws 1, 6 and 8 and as admitted by the 4th respondent himself in Ext.
The 3rd respondent Sudhir Ranjan Roy is a servant of D.W. I who is a co Director of the Match Factory and friend of the 1st respondent.
The 3rd respondent Haradhan Deb was appointed by the 1st respondent in the C.M.S.
The 3rd respondent was also an employee of the C.T.S. of which the 1st respondent was a Director.
" On the basis of these observations the appellant was held to ,have committed criminal breach of trust and to have either misappropriated or misapplied the funds of the Society dishonestly to benefit himself of his relations and friends.
Counsel failed to point out any legal infirmity in the final conclusion drawn in the impugned order from the overall picture.
Indeed, counsel, after a faint attempt to find fault with this conclusion felt constrained to admit that the money had been advanced against the rules of the Society and also to the persons not entitled to it, his only contention in support of the appeal being that it did not constitute a criminal offence and that in any event the Board of Directors of the Society having ratified the advances, the foundation for the criminal charge must be deemed to have disappeared.
We are unable to agree.
The offence of criminal breach of trust is committed when a person who is entrusted in any manner with property or With dominion over it, dishonestly misappropriates it, or converts it to his own use, or dishonestly uses it or disposes it of in violation 776 of any direction of law prescribing the mode in which the trust is to be discharged, or of any lawful contract, express or implied, made by him touching such discharge, or wilfully suffers any other person so to do.
The appellant 's manner of dealing with the money entrusted to his custody clearly constitutes criminal breach of trust.
Counsel was not able to point out any provision which empowers the Directors to prescribe the mode of making advances, which violates or is in breach of, or contrary to the Byelaws.
If the Directors, possess no authority to give any directions contrary to the byelaws they can scarcely claim or assume power to ratify violation of the Byelaws in the matter of dealing with the trust money.
Our attention was not drawn to any over riding provision conferring power on the Board of Directors to ratify use of the trust money contrary to the directions contained in the Byelaws.
Exhibit P 27, the resolution of the Board of Directors dated January 10, 1960, on which reliance in support of ' the argument was placed, merely states "investments made by the Secretary uptodate are hereby approved" without pointing out the provisions under which such approval could validate breaches of the Byelaws.
Incidentally it may be mentioned that the learned Judicial Commissioner also entertained some suspicion about the manner in which the meeting, in which this resolution was passed, was held.
This contention of the counsel must, therefore, be repelled.
In the last submission the counsel made a grievance against the joint trial of several accused persons on several items of embezzlement.
According to him there was a misjoinder of charges which vitiated the trial.
In our opinion, charges under section 408 and section 477 A, Indian Penal Code, could, in the circumstances of this case, be tried together and the joint trial of all the accused was proper and lawful.
Our attention was not drawn to any provision of law against the legality of the joint trial.
In any event no failure of justice in consequence of the joinder of charges was pointed out, with the result that the question of misjoinder of charges must be held to be of little consequence at the stage of appeal.
Before closing we may point out, as has repeatedly been said by this Court, that there is normally no right of appeal to this Court in criminal matters except in cases provided :by article 134 ( 1 ) (a) and (b) of the Constitution.
Clause (c) of this Article empowers the High Court to certify cases to be fit for appeal to this Court.
The word "certify" is a strong word; it postulates exercise of judicial discretion by the High Court and the certificate should ordinarily show on the face of it that the discretion was invoked and properly exercised.
This Court should be in a position to know that the High Court has not acted mechanically 777 but has applied its mind.
A certificate under this clause is impermissible on questions of fact and when a case does not disclose a substantial question of law or principle then the certificate granted by the High Court is liable to be revoked by this Court, though such prima facie non disclosure would not by itself automatically invalidate the certificate.
In the case in hand no substantial question of law or principle was made out at the bar and the certificate was clearly misconceived though it vaguely states that several questions of law are involved.
The appeal fails and is dismissed.
V.P.S. Appeal dismissed.
[/INST]The appellant, who was the Secretary of a Cooperative Society and was responsible for the cash and maintenance, of the accounts of the Society, was charged with the offenses of criminal breach of trust and falsification of accounts under sections 408 and 477 A, I.P.C. He was tried along with 5 others who were charged with the offence of abetment of the offenses.
The, trial court acquitted all of them, but the appellate court (the Court of Judicial Commissioner) convicted the appellant and acquitted the.
others.
The appellate Court held that the appellant had advanced money against the rules of the Society and also to various persons not entitled to it, that the appellant had thereby committed criminal breach of trust and either misappropriated or misapplied the funds of the Society dishonestly to benefit himself or his relations and friends.
The 'appellate Court certified that the case was a fit one for appeal to this Court under article 134(1) (c), but, the order granting the certificate did not disclose on its face what exactly was the difficulty of the appellate Court and what question of outstanding difficulty this Court was to settle.
In appeal to this Court, HELD : (1) The acquittal of the co accused was not based on the finding that there was no falsification of accounts or embezzlement.
Therefore, the appellant could not contend that no offence was committed because of the acquittal of the co accused.
[773 G D] (2) On the finding of the appellate court, it was not a mere civil liability of the appellant.
The appellant 's manner of dealing with the money entrusted to his custody constituted criminal breach of trust.
The Directors had no authority under the bye laws to give any directions contrary to the bye laws and so, could not ratify the violation of the bye laws.
Any resolution ratifying the use of trust money contrary to the directions contained in the bye laws would not validate the breach of the bye laws.
[775G; 776 A C] (3) There was no misjoinder of charges and no prejudice was caused to the appellant.
[776 F] (4) The appellate Court should not have granted the certificate, under article 134(1)(c) in the present case.
The word 'certify ' in the Article 771 postulates the exercise.
of judicial discretion by the appellate Court and the certificate should ordinarily show on the face of it that the discretion was invoked and properly exercised.
This Court should be in a position to know that the appellate Court has not acted mechanically but has applied its mind.
A certificate under this clause is impermissible on questions of fact.
When the case does not disclose a substantial question of law or principle the certificate.
granted by the appellate Court is liable to be revoked by this Court, though such_ prima facie non disclosure would not by itself automatically invalidate the certificate [777 A C]
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<s>[INST] Summarize the judgementSpecial Leave Petition (Civil) No. 13180 of 1985.
From the Judgment and order dated 17.4.1985 of the Madhya Pradesh High Court in Misc.
F.A. No. 252 of 1981.
S.N. Kacker and R. Ramachandran for the Petitioner.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an application under Article 136 of the Constitution for leave to appeal to this Court from the judgment and order of the High Court of Madhya Pradesh dated 17th April, 1985.
In order to appreciate the points involved, it is neces 106 sary to state that the petitioner entered into a contract dated 31st March, 1970 with respondent, State of Madhya Pradesh for the construction of Rip Rap on right bund of Masonary Dam of Tawa Project.
The contract could not be completed within the stipulated time because of alleged gross delay on the part of the State, according to the petitioner, in allotment of work and discharge of its obligations under the contract.
The petitioner incurred unforeseen expenditure, it is claimed, to the tune of Rs.5,29,812 and approached the Superintending Engineer for payment.
Upon refusal of the Superintending Engineer to pay the claim and his refusal to refer the matter to arbitration, the petitioner moved the learned District Judge under section 20 of the (hereinafter called 'the Act ') for filing of the arbitration agreement and for reference of the disputes to the arbitration.
On 24th April, 1976 the learned District Judge allowed the petitioner 's application and directed the respondent, State of Madhya Pradesh to file the agreement in Court and made a reference for specific question to the arbitration.
The High Court on 22nd September, 1976 dismissed the State 's appeal against the order of the District Judge.
Thereafter in March, 1977 Retired Engineer in Chief, P.W.D. Bhopal was appointed arbitrator.
There was an award dated 29th October, 1978 on all the issues referred, partly allowing the petitioner 's claim.
The award was filed in the Court of the District Judge and the respondent filed objections to the award under sections 30 and 33 of the Act and the petitioner filed replies.
The District Judge made the award a rule of the Court.
The respondent appealed to the High Court.
The High Court remanded the matter to the District Judge for fresh decision.
The District Judge accepted the objections and set aside the award.
The High Court by the impugned judgment dismissed the appeal of the petitioner.
It is from this judgment of the High Court that the petitioner seeks leave to appeal to this Court.
As mentioned hereinbefore by the impugned judgment and order of the High Court the award has been set aside.
The agreement contained an arbitration clause.
The work, however, could not be completed within the stipulated time, the period of contract was extended.
The contractor attributed delay on the part of the State Government whereas the State Government blamed the contractor.
This was a disputed question.
While the work was in progress, the contractor was required to meet extra expenditure on labour charges and materials due to revision in wage scales and escalation of prices.
Alterations and substitutions of works also led to extra expenses.
There were certain items for which rates were not provided but all the same work had to be done.
The contractor therefore, advanced claims 107 for compensation.
The Superintending Engineer dismissed the claims on the ground that the claims were barred under clause 3.3.15.
He also held that some of the claims were not covered by the contract.
The contractor sought to invoke the arbitration clause but the State sought to oppose on the ground that the dispute attracting the arbitration clause had not arisen.
It was contended that the claim was barred by clause 3.3. 15 and it had not been made within the time.
It was contended further that there was only one contract and there being no separate agreement for extension of period of the contract the rate as provided in the original contract alone was permissible.
As there was no separate contract and no reference under clause 3.3.29 could be made for the enhanced period beyond the period of the contract.
Relevant clauses of the contract were as follow: "3.3.15 Clause 15.
Time limit for unforseen claims: Under no circumstances whatever shall the contractor be entitled to any compensation from Government on any account unless the contractor shall have submitted claim in writing.
to the Engineer in Charge within one month of the cause of such claim occurring.
3.3.29 Clause 29.
Decision of Superintending Engineer, to be final except where otherwise specified in the contract.
The decision of the Superintending Engineer of the Circle for the time being shall be final, conclusive and binding on all parties to the contract upon all question relating to the meaning of the specification, design drawings and instructions hereinbefore mentioned and as to the quality of workmanship or material used on the work or as to any other question, claim, right matter or thing whatsoever, in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instructions, orders, or those conditions or otherwise concerning the work of execution or failure to execute the same, whether arising during the progress of the work, or after the completion or abandonment thereof.
Provided that if the contractor is dissatisfied with the final decision of the Superintending Engineer in respect of any matter, he may within 28 days after receiving notice of such decision give notice in writing to the Superintending 108 Engineer requiring that the matter may be referred to the arbitration and furnishing detailed particulars of the dispute or difference specifying clearly the point at issue.
If the contractor fails to give such notice within the period of 28 days as stipulated above the decision of the Superintending Engineer already given shall be conclusive and binding on the contractor.
In case an arbitration is to be held it shall be effected by an arbitrator to be appointed by the State Government whose decision shall be final, conclusive and binding.
If the work under the contract has not been completed when a dispute is referred to arbitration work shall continue during arbitration proceedings if it is reasonably possible and no payment due to contractor should be with held on account of arbitration proceedings unless it is required by the arbitrator 3.3.32 Clause 32.
Action where no specification: In case of any class of work for which there is no such specification as is mentioned in Rules, such work shall be carried out in accordance with the specification approved by Superintending Engineer/Chief Engineer, or application to works in the district and the event of there being no such specification, then in such case the work shall be carried out in all respect in accordance with the instructions and requirements of the Engineer in Charge.
3.3.33 Clause 33.
Definition of work: The expression "works" or "work" where used in these conditions shall, unless there by something either in the subject or context repugnant to such construction be constructed and taken to mean the works by or by virtue of the contract contracted to be executed, whether temporary or permanent, and whether original, altered, substituted or additional.
3.3.34 Clause 34.
Claim for quantities entered in the tender or estimate: 109 Quantities shown in the tender are approximate and no claim shall be entertained or work executed being either more or less than those entered in the tender estimate.
" The learned single Judge as mentioned hereinbefore of the High Court after exhaustive discussion dismissed the appeal and upheld the order.
Being aggrieved the petitioner went up in appeal before the Division Bench and the Division Bench on consideration of the matter dismissed the appeal.
The Division Bench considered the following issues raised before the District Judge: 1.
Whether the contractor had incurred extra costs towards wetting and washing of stones used in masonry of Group II Tawa Masonry Dam? 2.
Was the petitioner entitled to payment of this extra costs of Rs. 1.20,355? 3.
Whether the petitioner contractor had to incur extra cost of material and labour to the tune of Rs. 14,72,456 within the contract period for executing work assigned to it? 4.
Whether the contractor had incurred extra cost of Rs.8,84,336 for the work beyond the contract period due to unforeseen circumstances? 5.
Whether the petitioner 's claim on both the counts was in whole or in part of it was barred by time in terms of clause 3.3.
15? 6.
Whether the contract was rendered ineffective in terms of section 56 of the Contract Act due to unexpected change in the market rate of material and labour charges? 7.
Was the claim not entertainable in accordance with the terms ' of the contract under clause 3.3.32, 3.3.33 and 3.3.34 during the extended period of contract? 8.
Was the work delayed because of the presence of shale zone in the foundation which factor was not made known to the contract? 9.
Whether the contractor was entitled to extra costs of damages 110 for the delay caused on account of shale zone? The Division Bench came to the findings as follows: 1.
The contractor did incur expenditure on wetting and washing of stones in Masonry Group II, Tawa Masonry Dam but this was according to agreement.
The petitioner is not entitled to the payment of the extra costs of Rs.1,20,355. 3.
The petitioner/contractor did incur an extra cost of Rs.14,72,456 within the contract period for executing the assigned work.
The petitioner/contractor did incur an extra cost of Rs.6,81,796 for the work done beyond the contract period due to unforseen circumstances.
The petitioner is entitled to the claim to the extent of Rs.2,65,000 against Issue No. 3 and Rs.6,81,796 against Issue No. 4 above and the same is not barred by time in terms of clause 3.3.15.
The contract was not rendered ineffective in terms of section 56 of the Contract Act due to abnormal rise in the market rates of materials and labour. 7.
The claim under reference cannot be ruled out merely be cause of the provisions of clause 3.3.32, 3.3.33 and 3.3.34.
Yes, the work was delaved due to the presence of shale zone in the foundations, a factor which was unforeseen and was not made known to the contractor.
The contractor is entitled to claim extra cost due to the delay caused on account of the shale zone in foundations.
The Division Bench felt that the four factual issues decided by the District Judge were more or less by the agreement and therefore, the Division Bench did not deal with these.
So far as three legal issues which were referred to him, namely, whether the claim was barred under clause 3.3. 15, the contract was rendered ineffective in terms of 111 section 56 of the Contract Act due to abnormal rise in the market rate of material and labour and the claim not entertainable under clause 3.3.32, 3.3.33 and 3.3.34.
The High Court considered whether the appellant was entitled to extra cost towards rise in prices of materials and labour within and beyond the contract period.
The Division Bench noted that the learned District Judge held that since three legal issues were specifically referred to the arbitrator and therefore his decision had become final and binding on the parties and cannot be re agitated before the Court.
Regarding the remaining issues, the State had taken objection while opposing the application under section 20 that the appellant was not entitled to extra cost for material and labour in terms of the contract but the Court directed that this matter had to be agitated before the arbitrator and the application under section 20 could not be dismissed on the ground that the claim would not ultimately succeed.
The District Judge found and in our opinion rightly that the question regarding extra cost was a general question and not a specific legal question and the decision of the arbitrator was not final one.
The arbitrator misconducted himself in allowing the claim without deciding the objection of the State.
In view of the specific clauses, the appellant was not legally entitled to claim for extra cost.
The decision of this Court in Seth Thawardas vs Union of India, [1955] 2 SCR 18 is of no avail on this point.
If no specific question of law is referred, the decision of the arbitrator on that question is not final however much it may be within his jurisdiction and indeed essential for him to decide the question incidentally.
The arbitrator is not a conciliator and cannot ignore the law or misapply it in order to do what he thinks is just and reasonable.
The arbitrator is a tribunal selected by the parties to decide their disputes according to law and so is bound to follow and apply the law, and if he does not he can be set right by the Court provided his error appears on the face of the award.
In this case, the contractor having contracted, he cannot go back to the agreement simply because he does not suit him to abide by it.
The decision of this Court in M/s. Alopi Parshad vs Union of India, ; may be examined.
There it was observed that a contract is not frustrated merely because the circumstances in which the contract was made, altered.
The Contract Act does not enable a party to a contract to ignore the express covenants thereof, and to claim payment of consideration for performance of the contract at rates different from the stipulated rates, on some vague plea of equity.
The parties to an executory contract are often faced, in the course of carrying it out, with a turn of event which they did not at all anticipate, a wholly abnormal rise or fall in prices, a sudden depreciation of currency, an unexpected obstacle to execution, or the like.
There is no general 112 liberty reserved to the courts to absolve a party from liability to perform his part of the contract merely because on account of an uncontemplated turn of events, the performance of the contract may become onerous.
It was argued on behalf of the appellant that since specific issues 13 were framed and referred by the District Judge to the arbitrator, the same had been answered by a non speaking award, there is no mistake of law apparent on the face of record and the District Judge erred in setting aside the award by looking into the terms of the contract which it was submitted, neither formed part of the award nor appended to it.
We are unable to agree.
This being a general question, in our opinion, the District Judge rightly examined the question and found that the appellant was not entitled to claim for extra cost in view of the terms of the contract and the arbitrator misdirected himself by not considering this objection of the State before giving the award.
In Kapoor Nilokheri Co operative Dairy Farm Society Ltd. vs Union of India, , it was held that where an arbitrator is called upon to decide the effect of the agreement, he has really to decide a question of law, i.e. Of interpreting the agreement, and hence, his decision is not open to challenge.
This was also a decision against a reasoned award but since the reference was to a specific question of law, the decision of the arbitrator, it was held, was not open to challenge.
The limits of the jurisdiction of the Court to challenge the award are well settled.
While considering objection under section 30 of the Act, the Court does not act as an appellate court, it can only interfere with the award if the arbitrator misconducts himself or the proceedings or if the award has been made after the issue of an order by the Court superseding the arbitration or if the arbitration proceedings have become invalid under section 35(c) of the Act or the award has been improperly procured or is otherwise invalid.
The Judicial Committee in Champsey Bhara & Co. vs Jivraj Balloo Spinning & Weaving Co. Ltd., A.I.R. 1923 P.C. 66 has laid down the extent of the jurisdiction of the Court to set aside an award on the ground of an error in making the award.
It has been reiterated that the award of the arbitrator may be set aside on the ground of an error on the face thereof only when in the award or in any document incorporated with it as for instance, a note appended by the arbitrator, stating the reason for his decision, there is found some legal proposition which is the basis of the award and which is erroneous.
See also in this connection Re.
King & Duveen, and Government of Kelantan vs Duff Development Co. Ltd., , if how 113 ever, a specific question is submitted to the arbitrator and he answers it, the fact that the answer involves an erroneous decision in point of law, does not make the award bad on its face so as to permit of it being set aside.
See also the observations of this Court in Bungo Steel Furniture vs
Union of India; , It is well settled that the contract remained part of the award.
The Judicial Committee in Saleh Mohd. vs Nathoo Mal, 54 I.A. 427 considered an award in which the arbitrator recited a contract made between the parties and the dispute arising under it.
It was contended that the contract was incorporated in the award by its reference and so the award disclosed an error of law in construing the terms of the contract.
But that contention was negatived.
It was held that the reference to the contract in the award was to earmark the disputes between the parties and was not incorporated into the award.
In Abosalom Ltd. vs Creat Western, , it was held that if an award referred to the terms of a clause in the contract, the clause though not set out in full must be taken to be incorporated in it.
This Court has reiterated in Allen Berry & Co. vs Union of India, 119711 3 SCR 282 that mere reference to the contract in the award is not to be held as incorporating it.
In the aforesaid light, we are of the opinion, the High Court was right that the District Judge was entitled to examine the contract in order to find out the legality of the claim of the appellant regarding extra cost towards rise in prices of material and labour.
As was pointed out by the learned District Judge clauses 2.16 and 2.4 stipulated that the contractor had to complete the work inspite of rise in prices of materials and also rise in labour charges at the rates stipulated in the contract.
There was a clear finding of the arbitrator that the contract was not rendered ineffective in terms of section 56 of the Act due to abnormal rise in prices of material and labour.
This being so and the contractor having completed the work, it was not open to him to claim extra cost towards rise in prices of material and labour.
The arbitrator misconducted himself in not deciding this specific objection raised by the State regarding the legality of extra claim of the appellant.
In that view of the matter, the award, in our opinion, was properly set aside by the learned District Judge and the High Court was right in not interfering with it.
The question about specific reference on a question of law was examined by this Court recently in the case of Tarapore and Comapny vs Cochin Shipyard Ltd., Cochin and another; , There it was observed that if the agreed fact situation, on the basis of 114 which agreement was entered into, ceases to exist, the agreement to that extent would become otiose.
If rate initially quoted by the contractor became irrelevant due to subsequent price escalation, it was held in that case that contractor 's claim for compensation for the .
excess expenditure incurred due to the price rise could not be turned down on ground of absence of price escalation clause in that regard in the contract.
Agreement as a whole has to be read.
Reliance was placed very heavily on this decision on behalf of the appellant before us.
It has to be borne in mind that in the instant case there are specific clauses referred to hereinbefore which barred consideration of extra claims in the event of price escalation.
That was not so in Tarapore and Company 's case.
That made all the difference.
The basis of bargain between the parties in both these two cases were entirely different.
In the aforesaid view of the matter we are of the opinion that the High Court was right in the view it took and there is no ground to interfere.
The petition for special leave fails and is accordingly dismissed.
S.L. Petition dismissed.
[/INST]% The State of Bihar had a Directorate of Indigenous Systems of Medicines which was a part of its Health Department and one Dr. Nagesh Dwivedi was its Director.
On 6.5.1978 the State Government created a separate Directorate of Indigenous Medicines, the Director being from one of the systems of medicines consisting of Ayurvedic, Unani and Homeopathic.
At the time of creation of the separate Directorate, the Government sanctioned the posts of two Deputy Directors for each of the two remaining systems.
The State Government had in the meanwhile prescribed a 50 point roster to implement the policy of reservation to posts and appointments for members of the backward classes under article 16(4).
It was laid down that 'if in any grade, there is only one vacancy for the first time, then it will be deemed to be unreserved and for the second time also, if there be only one vacancy, then it will be deemed to be reserved '.
Acting upon this roster the Government reserved the post of Deputy Director (Homeopathic) for a scheduled caste candidate.
The Public Service Commission on being moved by the Government, issued an advertisement inviting applications from members of the scheduled caste and the appellant was selected for appointment to the post.
Respondent No. 4 challenged the selection of the appellant in the High Court by filing a petition under Article 226 of the Constitution.
In October, 1982 an additional post of Deputy Director (Ayurvedic) was created and filled.
The High Court allowed the writ petition and quashed the said advertisement and the consequent order of appointment of the appel 131 lant.
The High Court was of the view that the post of Director and three Deputy Directors could not be clubbed together for reservation of posts and appointments.
Nor could the posts of Deputy Directors Homeopathic, Ayurvedic and Unani which form distinct and separate systems of medicines be grouped for purposes of reservation.
The appellant contended that there were four posts in the Directorate of Indigenous Medicines and all the posts were Class I posts and therefore according to the 50 point roster the post of Director having been treated as unreserved by the Rotational system, the post of Deputy Director (Homeopathic) was rightly reserved for a scheduled caste candidate.
Dismissing the appeal, this Court, ^ HELD: The posts of the Director and those of the Deputy Directors constitute different cadres of the service.
It is manifest that the post of the Director of Indigenous Medicines, which is the highest post in the Directorate carried on a higher grade or scale, could not possibly be equated with those of the Deputy Directors on a lower grade or scale.
In view of this, according to the 50 point roster, if in a particular cadre a single post falls vacant, it should, in the case of first vacancy, be considered as general.
That being so, the State Government could not have directed reservation of the post of Deputy Director (Homeopathic) which was the first vacancy in a particular cadre i.e. that of the Deputy Directors, for candidates belonging to the schedule castes.
Such reservation was not in conformity with the principles laid down in the 50 point roster and was impermissible under article 16(4) of the Constitution and clearly violative of the guarantee enshrined in article 16(1) of equal opportunity to all citizens relating to public employment.
Clause (4) of article 16 is by way of an exception of the proviso to article 16 (i).
The High Court rightly held that the reservation of the post of Deputy Director (Homeopathic) amounted to 100% reservation which was impermissible under article 16(4) as otherwise it would render the guarantee of equal opportunity in the matter of public employment under article 16(1) wholly elusive and meaningless.
[137F H; 138A C] If there is only one post in the cadre, there can be no reservation under article 16(4) of the Constitution.
The whole concept of reservation for application of the 50 point roster is that there are more than one posts, and the reservation as laid down by this Court in M.R. Balaji 's case can be upto 50%.
The Government cannot, for instance, declare that the post of the Director of Indigenous Medicines shall be reserved 132 for candidates belonging to scheduled castes.
The Directorate is a paramedical service with Director as its head and the three Deputy Directors belonging to three distinct and separate disciplines viz.
Homeopathic, Unani and Ayurvedic under him.
In the para medical system the three posts of Deputy Directors pertain to three distinct systems and therefore each of them is an isolated post by itself.
The same principles should, we think, as in the case of Director, apply.
We refrain from expressing any opinion on the aspect whether the isolated posts like those of the Deputy Directors can be subjected to the 50 point roster by the rotational system as it does not arise in the present case.
Assuming that the 50 point roster applied, admittedly, the first vacancy in the cadre of Deputy Directors was that of the Deputy Director (Homeopathic) and it had to be treated as unreserved, the second reserved and the third unreserved.
The first vacancy of the Deputy Director (Homeopathic) in the cadre being treated as unreserved according to the roster, had to be thrown open to all.
A candidate belonging to the Scheduled caste had therefore to compete with others.
[138C G] The three posts of Deputy Directors of Homeopathic Unani and Ayurvedic are distinct and separate as they pertain to different disciplines and each one is isolated post by itself carried in the same cadre.
There can be no grouping of isolated posts even if they are carried on the same scale.
The Government of India instructions relating to reservations of posts and appointments for the scheduled castes and scheduled tribes contained in the Brochure on Reservation for Scheduled Castes and Scheduled Tribes in Services and which have been issued to carry out the mandate of article 16(4) consistent with the equality clause under article 16(1) and 16(2) and the requirements of article 335, namely, the maintenance of efficiency of administration clearly show that there can be no grouping of one or more isolated posts for purposes of reservation.
To illustrate, Professors in medical colleges are carried on the same grade and scale of pay but the posts of Professor of Cardiology, Professor of Surgery, Professor of Gynecology pertain to particular disciplines and therefore each is an isolated post.
[138H; 139A F] Article 16(4) is an exception to article 16(1) and article 16(2) and therefore the power to make a special provision for reservation of posts and appointments in favour of the backward classes must not be so excessive which would in effect efface the guarantee of equal opportunity in the matter of public employment or at best make it illusory.
We are not aware of any decision of this Court where excessive reservation of appointments or posts in favour of any backward class of citizens to the extent of 100% has been upheld, except in the application of the carry forward rule.
[139G H] 133 M.R. Balaji & Ors.
vs State of Mysore, [1963] Suppl.
1 S.C.R. 439; T. Devadasan vs Union of India & Anr., ; ; State of Kerala & Anr.
vs N.M. Thomas & Ors., ; ; Akhil Bharatiya Soshit Karamchari Sangh (Railway) vs Union of India & Ors., ; ; State of Karnataka vs Shivaji Y. Garge (C.A. No. 4117 of 1984 decided on 19th October, 1984; K.C. Vasanth Kumar & Anr.
vs State of Karnataka, [1985] Suppl.
S.C.C. 714 and Arati Ray Choudhury vs Union of India & Ors., ; , referred to.
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<s>[INST] Summarize the judgementCivil Appeals Nos. 356 and 357 of 1961.
Appeals by special leave and certificate from the judgment and orders dated October 16, 1959, and February 16,1960, of the Madhya Pradesh High Court in L. P. A. No. 93 of 1957 and Misc.
Petition No. 254 of 1959 respectively.
152 section T. Desai and N. H. Hingorani, for the appellant.
M. R. Nambiar, section N. Andley, Rameshwar Nath and P. L. Vohra, for respondent No. 1. 1960.
October 20.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
These two appeals by special leave have been filed by the Municipal Committee, Raipur, against two different respondents who carry on business of extraction of oil from oil seeds.
The case involves an interpretation of the Byelaws of the Municipal Committee and the determination of octroi duty which was payable by the respondents in the relevant years of assessment on sarso oil seeds brought by them within the area of the appellant Committee for purposes of their business.
The Municipal Committee demanded an ad valorem octroi duty Rs. 4 11 0 per cent from the respondents, claiming to levy it under item 44 of the Schedule of goods liable to octroi duty in the Raipur Municipality, appended to the Rules framed on June 4, 1951.
The respondents, on the other hand contended that a duty of 2 annas per maund was leviable under item 4 of the same Schedule, which covered the case of oil seeds.
The respondents made representations described as appeals, but were unsuccessful.
Their demand for refund of octroi duty paid by them was refused and they, therefore, filed petitions under article 226 of the Constitution in the High Court of Nagpur (later, of Madhya Pradesh) against the appellants alleging inter alia that this imposition of octroi duty ad valorem at Rs. 4 11 0 percent on sarso oil seeds as against other oil seeds was ultra vires the Municipal Committee under article 14 of the Constitution.
They also averred that octroi duty was properly leviable under item 4 and not under item 44.
In the High Court, the petition out of which Civil Appeal No. 356 of 1961 arises, was heard by a learned single Judge, who held that 153 sarso oil seeds were chargeable to duty under item 44 and not under item 4.
From the order of the learned single Judge, it does appear that the constitutional question was urged before him.
Against this order, a Letters Patent Appeal was filed, and the Divisional Bench, which heard the appeal, held, disagreeing with the learned single Judge, that duty was properly leviable only under item 4.
Before the Divisional Bench also, it does not appear that the constitutional question was argued.
The petition, out of which Civil Appeal No. 357 of 1961 arises was heard by a Divisional Bench, which, following the earlier decision, decided against the appellant Committee.
The entries in the Schedule of goods liable to octroi duty in the Raipur Municipality contain eight classes of goods.
Under them are grouped 67 items, the serial numbers running consecutively through all the classes.
Class I is headed "Articles of food or drink or use for men or animals".
Item 4, which is in that Class reads "Oil seeds of every description not specifically mentioned elsewhere".
Class V is headed "Drugs, spices and gums, toilet requisites and perfumes", and item 44 reads "Betel nuts, gums, spices, Indian herbs and Indian raw medicines and drugs, such as nuts, ilaichi, laung, jaiphal, jaipatri, dalchini., sont, katha, zeera, Dhania garlic, dry chillies, pepper, shahzeera, maithi, sarso, etc.
and known as kirana" (groceries).
Item 4 is chargeable to a duty of 2 annas per maund, and item 44 is chargeable ad valorem at Rs. 4 11 0 per cent.
In addition to these entries, there is item 17, which reads "Vegetable oils (not hydrogenated) not provided elsewhere such as Tilli Tel, Sarso Tel, Alsi Tel, Falli Tel, Narial Tel, Andi Tel ', which are chargeable to a duty of 4 annas per maund.
It is conceded on all hands that sarso is an oil seed, and if there was nothing more in the Schedule a duty of 2 annas per maund would be leviable on sarso as an oil seed.
The dispute arises, because 154 sarso is mentioned again in Item 44 with a very much higher duty, and it is contended by the appellant Committee that the words "not specifically mentioned elsewhere" in item 4 exclude sarso from that item, and that its specific mention in item 44 makes it liable to the higher duty indicated there.
The learned single Judge of the High Court held in favour of the Municipality.
According to him, this reason was sound and the higher duty demanded was the proper duty payable.
The Divisional Bench on the other hand, points out that the two classes (I and V) are entirely different.
Class 1 deals with articles of food or drink for use for men and animals while Class V deals with drugs, spices and gums, toilet requisites and perfumes.
The division indicates clearly that goods belonging to one category are not included in the goods belonging to the other.
The Divisional Bench also points out that item 4 must be read as it stood and the specific mention must be in the same manner in which that entry was framed.
Item 4 deals with "oil seeds", and the specific mention must be as "oil seeds" elsewhere in the Schedule.
It was also argued for the respondents that "elsewhere" meant elsewhere in the same Class.
But the appellant Committee pointed out that the serial numbers were all consecutive, and that the specific mention could be anywhere in the Schedule.
The two arguments are equally plausible, and nothing much, therefore turns upon them.
In our opinion, the Divisional Bench of the High Court was right when it said that the specific mention elsewhere must be as oil seeds and not as something else.
Class V deals with spices and groceries and the concluding words of item 44 known as "kirana" determine the ambit of that item.
Though sarso might be mentioned there, it must be taken to have been mentioned as a spice or as kirana and not as oil seed.
The extent of item 4, which deals with oil seeds of every descrip 155 tion, could only be cut down by a specific mention elsewhere of an item as an oil seed.
Item 44 contains fairly long list, out of which we have quoted a few illustrative items.
Each of these items is referable to the general heading either as a drug or a spice or gum, etc.
Sarso, it is admitted, is sold as kirana and as a spice.
The mention of sarso there is limited by the general heading to which it belongs, namely, a spice, drug or herb sold as kirana.
No doubt, sarso as an oil seed is the same article as sarso sold as kirana but we must take into account the intention behind the bye law and give effect to it.
If it was intended that sarso as an oil seed was to be taxed in a special way, it would be reasonable to expect that it would have be found a specific in mention as an oil seed with a different duty.
One would not expect that it would be included in a long list of articles of kirana and in this indirect way be taken out from a very comprehensive entry like item 4, where oil seeds of every description are mentioned.
Though the next argument is not conclusive because there is no logic behind a tax, still it is to be noticed that sarso oil (a maund of which, as the affidavit of the respondents shows, is expressed from three maunds of oil seed) bears only an octroi duty of 4 annas per maund, while three maunds of sarso oil seed under item 44, if it were applicable, bear a duty of Rs. 4 3 6 per maund, if the price of sarso is taken as Rs. 30 per maund as stated in the affidavit.
This leads to an anomaly, which, in our opinion, could hot have been intended.
Finally, it may be said that if there be any doubt, the Divisional Bench of the High Court very properly resolved it in favour of the taxpayer.
We, therefore, hold that the judgment of the High Court is correct, and dismiss these appeals with costs.
Appeals dismissed,.
[/INST]The appellant companies which were carrying on business in Calcutta in petroleum and petroleum products maintained supply depots at Dum Dum Airport from which motor spirit for B the purposes of aviation was sold and delivered to aircraft which either proceeded to foreign countries directly from that Airport or did so ultimately, though landing en route at some place or places in the Indian territory.
Dum Dum Airport was a customs aerodrome and all aircraft coming into it or leaving it had to comply with ordinary customs formalities.
The sales tax authorities of West Bengal sought to levy tax on the sales of motor spirit as aforesaid under the provisions of the Bengal Motor Spirit Sales Taxation Act, 1941, as amended.
The appellant companies claimed that the sales were exempted from taxation under both the clauses (a) and (b) of article 286(i) of the Constitution of India on the grounds (i) that the sales in question had taken place outside the State of West Bengal, as they did not .come within the Explanation to article 286(1)(a), (2) that aviation spirit was delivered outside the customs barrier and therefore the sales were outside the State, and (3) that the sales had taken place in the course of export, as aviation spirit was taken out of the territory of India.
Held: (i) that by sale in article 286(i)(a) is meant a completed transaction by which property in the goods passes.
Before property in the goods passes the contract of sale is only executory and the buyer has only a chose in action.
The taxable event is not to be found at an earlier stage because the critical taxable event is the passing of property.
The Explanation to cl.
(1) of article 286 was added to avoid, among other things, multiple taxation of the same transaction.
It indicates the State where the tax can be levied and also the State where it cannot.
It achieves it by excluding from consideration the place where the property in the goods passed according to the law relating to sale of goods.
The non obstante clause establishes this.
By the fiction created by the Explanation a sale is deemed to have taken place in the State where the goods are delivered as a direct result of the sale for purposes of consumption in that State.
Where there are more States than one involved, any State claiming to tax a sale by reason of something anterior to the passing of property would not be able to claim that the sale took place there unless it was also the State of delivery.
The Explanation is meant to explain the Article and must be interpreted according to its tenor and the Explanation is not to be explained with the aid of the Article because that would reverse their roles.
The Explanation is not applicable unless there are more States than one involved.
The State of Bombay vs The United Motors (India) Ltd., , State of Travancore Cochin vs Shanmugha Vilas Cashewnut Factory, ; , Ramnayain Sons Ltd. vs Asst.
904 Commissioner of Sales Tax; , and The Bengal Immunity Company Ltd. vs The State of Bihar, [1955] 2 S.C.P. 603, considered.
(2) that to exclude the power of taxation of the State of West Bengal under article 286(i)(a), read with the Explanation, the appellant companies must be able to point out some other State where the goods could be said to have been delivered as a result of the sale for the purpose of consumption in that other State, and that where, as in the present case, aviation spirit was delivered to the aircraft, there was no such rival State, and therefore, the ban contained in article 286(i)(a) and the Explanation, did not apply.
(3) that in the phrase " in the course of export out of the territory of India " in article 286(i)(b) the word " export " does not merely mean 'taking out of the country '.
Export here means that the goods are being sent to a foreign destination at which the goods can be said to be imported.
In the Article the notions of import and export go in pairs.
State of Travancore Cockin vs The Bombay Co. Ltd., ; and State of Travancore Cochin vs Shanmugha Vilas Cashew Nut Factory, ; , relied on.
(4) that aviation spirit loaded on board the aircraft for consumption, though taken out of the country, was not exported since it had no destination where it could be said to be imported.
The sales in question could not, therefore, be said to have occasioned the export, nor were they in the course of export.
Accordingly, article 286(i)(b) was not applicable.
(5) that the sales must be treated as made within the State of West Bengal.
The customs barrier did not set a terminal limit to the territory of West Bengal for the purposes of sales tax, and the sales, though beyond the customs barrier, were still within the territory of the taxing State.
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<s>[INST] Summarize the judgement: Special Leave Petition (Criminal) No. 372 of 1985.
From the Judgment and Order dated 18/19.9.1984 of the Bombay High Court in Criminal Appeal No. 423 of 1981 S.B. Bhasme, A.B Bhasme and M.A, Firoz for the Petitioner.
The Order of the Court was delivered by CHINNAPPA REDDY, J. This Special Leave Petition by the first accused in Session Case No. 134 of 1980 before the Sessions Judge, Sholapur whose conviction by the Sessions Judge under section 302 has been confirmed by the High Court, has to be dismissed as it rests entirely on appreciation of evidence.
While dismissing the Special Leave Petition we are however, constraint to make a few remarks about some of the observations of the High Court.
In paragraph 18 of the judgment of the High Court it has been said "the case of the prosecution stands on the pedestal of a tripod having the eye witness account of Shrimant and Nirmala as one leg; the discovery of axes, spear and a pair of trousers as the second leg and the animosity generated by high handed behaviour of Malkari regarding diversion of rain water as the third leg.
The confession made by accused No. 1 Nogeshi which was subsequently retracted forms the additional fourth lee of the tripod but it is well settled that the confessional statement can never be an evidence upon which a to found a conviction.
It can at best furnish an additional reenforcement when the other evidence is clinching enough to pronounce a verdict of guilt.
The confessional statement alone and by itself would lead us nowhere; if one of the legs of the tripod on which the prosecution bases its case gives way, the whole case like Humpty Dumpty would come tumbling down and the additional fourth leg that is, the confession, will not, like all the King 's horses and all the King 's men would put Humpty Dumpty together.
" 463 The metaphor used by the judges is entirely misapplied and misleading.
The evidence of the eye witness, if accepted, is sufficient to warrant conviction though in appropriate cases the Court may as a measure of caution seek some confirming circumstances from other sources.
But ordinarily, the evidence of a truthful eye witness is sufficient without anything more, to warrant a conviction and cannot for instance, be made to depend for its acceptance on the truthfulness of other items of evidence such as recovery of weapons etc.
at the instance of the accused by the police.
The Judges of the High Court were wrong in treating the evidence of eye witness as 'one of three legs of a tripod which must collapse if any of the other legs collapses.
Again the High Court is wrong in thinking that a confession cannot be the foundation of a conviction but can only constitute 'a fourth leg to a tripod '.
This statement has been repeated again in paragraph 30, where the High Court has observed "the confession alone and by itself cannot prove the guilt of an accused.
" We are not a little surprised that such a statement should have been made by the High Court.
We wish to make it clear and this is only to repeat what is so well established that a retracted confession by an accused may form the basis of a conviction of that accused if it receives some general corroboration from other independent sources.
It cannot however, be the basis for convicting co accused though it may be taken into consideration against co accused also.
It is entirely wrong to think that a confession can lead nowhere.
We are sorry to find such careless statements in the judgment of a High Court.
Special leave petition is dismissed.
[/INST]The petitioner was convicted by the Sessions Judge under Section 302, IPC.
and the conviction was confirmed by the High Court.
Dismissing the Special Leave Petition, ^ HELD: 1.
The evidence of an eye witness, if accepted is sufficient to warrant conviction though in appropriate cases the Court may as a measure of caution seek some confirming circumstances from other sources.
But ordinarily, the evidence of a truthful eye witness is sufficient without anything more to warrant a conviction and cannot for instance be made to depend for its acceptance on the truthfulness of other items of evidence such as recovery of weapons etc.
at the instance of the accused by the police.
[463 B]] 2.A retracted confession by an accused may form the basis of a conviction of that accused if it receives some general corroboration from other independent sources.
It cannot however, be the basis for convicting a co accused though it may be taken into consideration against co accused also R It is entirely wrong to think that a confession can lead nowhere.
[463D E] 462 In the instant case, the High Court was wrong in treating the evidence of the eye witness as 'one of three legs of a tripod ' which must collapse if any of the other Legs collapses.
It was also wrong in holding that a confession cannot be the foundation of a conviction but can only constitute 'a fourth leg to a tripod ', and that "the confession alone and by itself cannot prove the guilt of an accused." [463C D]
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<s>[INST] Summarize the judgementivil Appeal No. 1375 of 1974 605 From the Judgment and Order dated 21.2.
1971 of the Allahabad High Court in Excise Profit Tax Reference No. 55 of 1968.
Dr. V. Gauri Shankar and Miss A. Subhashini for the Appellant.
S.T. Desai, Harish Salve, Mrs. A.K. Verma and D.N. Mishra for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This appeal is directed against the judgment and order of the High Court of Allahabad dated 21st February 1971.
It relates to the assessment under the Excess Profits Tax Act, 1940 (hereinafter called the 'Act ').
The assessee was an unregistered firm carrying on business of manufacture and sale of katechu.
The chargeable account ing period was 1 4 1943 to 31.3.
There were two partners of the assessee firm, namely, L. Phoolchand and M/s Biharilal Balkishan each having profits in proportion of 11 annas and 5 annas respectively.
The work in connection with the extraction of Katechu was carried on in Nepal by 1.
Phoolchand and the sale of Katechu were effected by M/s Biharilal Balkishan at their shops in Kanpur.
The assessee firm did not maintain any books of account and the entire record of the business transaction was maintained in the books of M/s Biharilal Balkishan in the account styled "Kalyanmal Phoolchand".
The assessee firm had taken a jungle on lease for this purpose and had extracted Katechu from October, 1940 to September, 1941.
The sales of katechu extracted were effect ed from 30th May, 1941 to 29th September, 1941.
Thereafter another jungle was taken on lease in November, 1942 and Katechu were extracted from 23rd November, 1942 to 6th November, 1944.
The sales in this case were effected between 26th July, 1943 to 4th April, 1944.
The High Court divided the entire period of manufacture and sale as follows: 1. October 28, 1940 to March 31, 1941, failing in the financial year ending March 31,1941.
Katechu was manufac tured but there was no sale.
April 1, 1941 to September 29, 1941, failing in the financial year ending March 31, 1942.
Sales took place from May 30, 1941 to September 29, 1941.
606 3.
November 23, 1942 to March 31, 1943, falling in the financial year ending March 31, 1943.
Katechu was manufac tured but there was no sale.
April 1, 1943 to March 31, 1944, falling in the finan cial year ending March 31, 1944, sales took place from July 26, 1943 to March 31, 1944.
April 1, 1944 to April 4, 1944, falling in the finan cial year ending March 31.
1945, sales were effected from April 1, 1944 to April 4, 1944, when the business was dis continued.
Therefore, while there was manufacturing activity there was no sale during the financial years ending 31st March, 1941 and 31st March, 1943.
The dispute in this case is with regard to the set off of deficiency of profit relating to the periods 20th October, 1940 to 17th October, 1941 and 23rd November, 1942 to 31st March, 1943.
The Excess Profit Tax Officer did not set off the said deficiency of profits that accrued in respect of the period 1940 41 out of the profits for the chargeable accounting period from 1.4.1943 to 31.3.
The submission of the assessee was that the business carried on during the charge able accounting period under consideration was not separate to and distinct from the business carried on in 1940 41.
The Excess Profit Tax Officer held that business carried on during October, 1940 to October, 2941 was completely differ ent from the business carried on during the chargeable accounting period under consideration.
The Appellate Assistant Commissioner on appeal found that the constitution of the firm during the chargeable accounting period was the same as in 1940 41 and the ac counts were maintained in the same fashion; and that the same business of manufacturing Katechu in Nepal and selling the finished products at kanpur was carried on.
The Appel late Assistant Commissioner, therefore, held that the asses see was entitled to set off in respect of the deficiency of profits accruing in the year 1940 41.
The Appellate Assist ant Commissioner further found that the assessee had effect ed sales only during 30th May, 1941 to 29th September, 1941.
As such there were no sales either during or until 30th May, 1941 land subsequent to 29th September, 1941.
As such he held that there was no profit arising during the accounting period ending on 31st March, 1941.
He, therefore, confirmed that there were no profits and losses during the chargeable accounting 607 period ending on 31st March, 1941 and as such there could be no deficiency of profits.
In the premises, according to the Appellate Assistant Commissioner, the assessee was entitled to a set off of the deficiency only for the chargeable accounting period ending on 31st March, 1942 which consisted of the period 1st April, 1941 to 29th September.
He allowed such deficiency of Rs.5,600 only.
So far as the deficiency pertaining to the period November, 1942 to 3 Ist March, 1943 was concerned, the facts were that the manufac turing operations started in Nepal on or about 23rd Novem ber, 1942 and the sales of Katechu started at Kanpur on 26th July, 1943 Katechu produced in Nepal from 23rd November, 1942 to 31st March, 1943 remained in stock till the last date of the chargeable accounting period namely 31st March, 1943 and no part of it was sold.
As the assessee did not maintain any books of account, the provisions of section 13 of the Income Tax Act, 1922 as applied to the Act vide section 21 of the Act were applicable.
The revenue, there fore, valued the stock in trade at cost and held that there could be no profit or loss during the chargeable accounting period.
In appeal, the assessee had urged that deficiency in profits pertaining to the chargeable accounting periods from October, 1940 to 31st March, 1941 and 23rd November, 1942 to 31st March, 1943 should be allowed a set off in computing the excess profits for the year under consideration.
It was submitted that there was no profits pertaining to the said chargeable accounting period, and therefore, the standard profits as provided in the Act became the deficiency of the said two chargeable accounting periods which should have been allowed set off.
It was further urged on behalf of the assessee that the manufacturing operations were carried on during the said periods and as such it could not be said that the assessee did not carry on any business.
The Tribunal, however, held that no profits accrued unless sale was effected and, therefore, there was no merit in the submission made on behalf of the assessee that during the said two chargeable accounting periods, although there were no sales effected, yet profits accrued to the assessee.
It was urged on behalf of the revenue that as provided in the Act, the provisions of the Act would apply to every business of which any part of profits was made during the chargeable accounting period, is chargeable to income tax.
It was further urged that no part of profits, if any, which accrued during the said two chargeable accounting periods could be charged and were in fact not so charged, to income tax, as no sales were effected and, therefore, the Act itself did not apply to the said two chargeable account ing periods.
The Tribunal accepted this contention on behalf of the revenue and as 608 such confirmed the order of the Appellate Assistant Commis sioner.
On the said facts, the following question of law was referred to the High Court at the instance of the assessee: "Whether, on the facts and in the circum stances of the case, the assessee was entitled to a set off of deficiency of profits relating to the period 28.10.1940 to 31.3.1941 and 23.11.
1942 to 31.3.1943 from the profits of the chargeable accounting period 1.4.1943 to 31.3.1944 in accordance with the provisions of the E.P.T. Act, 1940?" The High Court held that it was not disputed before them that the assessee was carrying on the same business from 28th October, 1940 to 4th April, 1944 for the purpose of the Act.
The only question was whether the assessee could be said to have suffered any deficiency of profits during the period 28th October, 1940 to 31st March, 1941 and 23rd November, 1942 to 31st March, 1943 and was whether entitled to be given the benefit of such deficiency.
of profit.
The High Court referred to certain definitions and recognised and in our opinion rightly that there were sever al stages in business activities before profits could be realised.
The High Court observed that profits realised were not of the sale alone.
The profits were attributable to the manufacturing operations as well.
The High Court referred to certain decisions to which our attention was also drawn where under the Act as to the place where the profits arose, the courts had enquired into the place where the manufactur ing took place and where the sales took place.
This conten tion is no longer relevant for the controversy before us.
It was accepted before us that a manufacturing process may begin in one year and result in sale in another year and also that manufacturing process may take at one place and sale at another place.
For the purpose of computing the profit of certain operation, it is true as the High Court noted, that manufacture and sale might take place in two different years.
The High Court held that though chargeable levy was an annual charge and generally for the purpose of the levy of the annual charge the profits of the year preceding the year of charge are taken into consideration if the manufacturing activity leading to the production of finished article which was subsequently sold contributed to the profits realised, according to the High Court, it mattered little whether or not the manufacturing activity of the sale related to the same period of 609 twelve months.
Some part of the profits realised would be attributable to the manufacturing activities and, therefore, could be said to arise during the period when manufacturing was carried on even though sales were effected in the next year.
The High Court, therefore, was of the view that it was necessary to ,determine what part of the profits realised upon the sales from 30th May, 1941 to 29th September, 1941 could be attributed to the manufacturing activity between 28th OCtober, 1940 to March, 1941 and then to compute the deficiency of profits for the chargeable accounting period ending 31st March, 1941.
That might require, according to the High Court, a fresh determination of the profits earned during the period 1st April, 1941 to 29th September, 1941 and, consequently, of the deficiency of profits during the chargeable accounting period ending 31st March, 1942.
The High Court was of the view that the deficiency of profits for the chargeable accounting periods ending 31st March, 1941 and 31st March, 1942 would have to be set off when computing the excess profits for the relevant chargeable accounting period ending 31st March, 1944.
The High Court expressed the view that under section 2(5) of the Act the job of the assessee in the extraction and sale of Katechu under the two jungle leases must be considered as a single business for the purpose of the Act.
The High Court, there fore, came to the conclusion that upon the principle of apportionment of profits to which it had adverted to, the profits earned upon sales effected during the chargeable accounting period ending 31st March, 1944 must similarly be apportioned between the manufacturing activity during the chargeable accounting period ending 31st March, 1943 and the sales during the chargeable accounting period ending 31st March, 1944 and the deficiency of profits worked out on that basis in respect of the chargeable accounting period ending 3 Ist March, 1943 must be set off in computing the excess profits for the chargeable accounting period ending 31st March, 1944.
The High Court, therefore, did not accept the opinion of the Tribunal that because the chargeable account ing periods ending 31st March, 1941 and 31st March, 1943 were occupied with manufacturing activity alone and there were no sales, therefore, no part of the profits realised upon the sales could be apportioned to those chargeable accounting periods and consequently that it could not be said that there was any deficiency of profits during those periods.
The question referred to the High Court was an swered in affirmative.
In order to appreciate the real controversy in this matter, it is appropriate to refer to the observations of Kania, J., as the Chief Justice then was, in the decision in the case of Commissioner of Income 610 Tax, Bombay vs Raipur Manufacturing Co., Ltd.; at 733.
It was observed as follows: "The Excess Profits Tax Act as shown by the preamble itself is a legislation to impose tax on excess profits arising out of certain business.
The Income tax Act is the principal legislation which imposes a tax on the income of a person.
Section 6 divides the income under five heads which are chargeable to tax.
The fourth head is profits and gains of busi ness, profession or vocation.
Out of that a certain portion is carved out by the Legisla ture for the purpose of imposing the excess profits tax.
I am unable to accept the conten tion of the Commissioner that the Excess Profits Tax Act is an entirety independent legislation, which is connected with the Income tax.
Act only to the extent it is expressly so stated in the Excess Profits Tax ' Act.
The scheme that the Excess Profits Tax Act is a legislation intended to tax the profits of certain business in excess of a certain limit as provided in that Act.
It is therefore complementary to the Income tax Act by its very nature." As the Statement of Objects of the Act stated that the outbreak of war, while it has necessitated greatly increased expenditure by the Government on defence and other services, has simultaneously created opportunities for the earning by companies and persons engaged in business of abnormally large profits.
The object of the Bill (which later became the Act was to secure for the Government a considerable portion of the additional business profits which accrued as a result of the conditions prevailing during the war.
To begin with the right to impose a tax of 50% of the excess of the profit made in any accounting period after the 1st day of April, 1939 was given.
It had subsequently been increased to 66 2/3 %.
Section 2(1) of the Act defines the 'accounting period '.
Section 2(6) defines 'chargeable accounting period as (a) any accounting period falling wholly within the term begin ning on the 1st day of September, 1939, and ending on the 31st day of March, 1946 and (b) where any accounting period falls partly within and partly without the said term, such part of that accounting period as fails within the said term.
The 'standard profits ' is defined under section 2(2) which was required to be computed in accordance with the provisions of section 6 of the Act.
It is not necessary in view of the controversy before us to refer to other defini tions except that section 2(3) deals with 'average 611 amount of capital ' which is relevant for computation of the excess profits.
Section 6 defines the 'standard profits ' and how it is to be computed.
As there was no controversy on this aspect before us, it is not necessary to deal with it.
Section 2(9) defines 'deficiency of profits ' as follows: (9) "deficiency of profits" means "(i) where profits have been made in any chargeable accounting period, the amount by which such profits fall short of the stand ard profits; (ii) where a loss has been made in any charge able accounting period, the amount of the loss added to the amount of the standard profits;" Section 4 defines 'charge of tax ' as follows: "Charge of tax" ( 1 ) Subject to the provi sions of this Act, there shall in respect of any business to which this Act applies, be charged, levied and paid on the amount by which the profits during any chargeable ac counting period exceed the standard profits a tax (in this Act referred to as "excess prof its tax") which shall, in respect of any chargeable accounting period ending on or before the 31st day of March, 1941, be equal to fifty per cent, of that excess and shall, in respect of any chargeable accounting period beginning after that date, be equal to such percentage of that excess as may be fixed by the annual Finance Act; Provided that any profits which are, under the provisions of sub section (3) of section 4 of the Indian Incometax Act, 1922, exempt from income tax, and all profits from any business of life insurance shall be total ly exempt from excess profits tax under this Act.
Provided further that in the. case of any business which includes the mining of any mineral, any bonus paid by or through the Central Government in.
respect of increased out put of the mineral shall be totally exempt from excess profits tax under this Act.
(2)Where a chargeable accounting period falls partly 612 before and partly after the end of March, 1941, the foregoing provisions of this section shall apply as if so much of that chargeable accounting period as falls before, and so much of that chargeable accounting period as falls after, the said end of March were each a separate chargeable accounting period, and as if the excess of profits of that separate chargeable accounting period were an appor tioned part of the excess of profits arising in the whole period determined in accordance with the provisions of section 7A." Section 7 deals with the relief on occurrence of defi ciency of profits and provides in substance that where a deficiency of profits occurs in any chargeable accounting period in any business, the profits of the business charge able with excess profits tax shall be deemed to be reduced and relief shall be granted according to the provisions laid down therein.
The main question in this case is to keep the distinc tion between 'accounting period ' and 'chargeable accounting period '.
The accounting period, it has to be borne in mind, is the twelve months ' proceeding just on the basis of the income tax year and the assessment must be made on the same basis.
The 'chargeable accounting period ' is the period beginning from 1st September, 1939 ending after amendment on 31st March, 1946.
So if there is any deficiency of profits in any of the accounting period which has not been absolved in the assessment for that year may be carried forward but the assessment must be made on the basis of the accounting period.
This has to be emphasised and it must be borne in mind that though it is wholly immaterial whether the manu facture and sale took place in the same year or in two different years, the division of time into periods for its assessment must be made in a real sense as in the income tax one, and then make appropriate adjustments.
Therefore the profits and losses of each year must be computed on yearly basis in terms of the definition of 'accounting period ' under section 2(1) of the Act.
But if any deficiency of profits remains unabsolved, it may be carried forward against any excess profits made and set off during the next accounting period.
The chargeable accounting period is the period from 1st September, 1939 to 31st March, 1946.
But each year 's excess profit & loss must be computed in the manner contemplated in section 2(1) of the Act.
So if there was any deficiency of profits in any particular period, it must be determined on that basis.
In order to work out the scheme of the Act, there must be proper devetailing of the concept of "accounting period", 613 "chargeable accounting period" and basic scheme of the Income Tax Act bearing in mind that excess profits are excess of profits which were intended to be mopped up during the war period intended to be taxed separately and differ ently.
This view finds support in the decision of the Alla habad High Court.
In the case of Haji Rahmat Ullah and Co. vs Commissioner of Income tax, U.P., the High Court of Allahabad held that a payment received in any year subsequently to a chargeable accounting period is not liable to be treated as the profits of that period, merely because the work which occasioned that payment was done during that period.
The "profits during the chargeable accounting peri od" are those profits respecting which a right to receive had accrued or arisen during that period.
If the right to receive those profits had accrued or arisen subsequently, then even though they had accrued or arisen by reason of work done during the chargeable accounting period, these were not liable to be treated as the profits of that charge able accounting period.
The High Court observed that it would seem ex facie that if the profits earned during a certain period are taxable under the Income tax Act, it is a part of those very profits which is liable to excess profits tax.
Whether the profits in the one case could be identified with the profits in the other would be determined by refer ence to the period in which those accrued or arose.
It was emphasised that the profits during the chargeable accounting period must be computed under the Excess Profits Tax on the same basis as are profits for an income tax assessment.
It is clear that excess profits tax is attracted in respect of a business to which the Act applied when the profits during the chargeable accounting period exceed the standard profit.
It has to be clearly borne in mind that the Act is not an entirely different Act in the sense that it proceeds upon the concept completely different from the notions of Income tax and has its source in an entirely different tax concept.
More profits which were likely to have been earned during those years, these were made subject to excess profits.
It appears to us that the period of assessment in the Act is an "accounting period" in the same way as the 'previ ous year ' is the period of assessment for the purpose of Income Tax.
Though profit in a composite transaction could be apportioned as between manufacture and sale in the same accounting year, such an apportionment is not permissible when one part of the transaction, i.e. manufacture, fails in one chargeable accounting period and falls in another part of the accounting period i.e. the trading operations, i.e. falls in another accounting period, then set off of defi ciency in profits under section 7 of the Act is permitted but a necessary precondition was that profit 614 must be made in the accounting period to which the deficien cy relates.
The profits attributed on apportionment was outside the scope of section 7 of the Act.
It must be remem bered that the 'excess profit ' under the Act is profit determined under the Income Tax Act subject to prescribed adjustments.
If the income tax assessment discloses nil profits, no separate profit can be determined independently under the Act.
The position of the Excess Profits Tax Act was explained by Lord President Clyde in Edward Collins & Sons.
Ltd. vs The Commissioner of Inland Revenue, at 780 where the Lord President emphasised that subject to certain modi fication those profits had to be determined in the same way and on the same principle as a trader 's profits and gains have to be computed for the purposes of the Incometax Act.
It is a general principle, in the computation of the annual profits of a trade or business under the Income Tax Acts, that those elements of profit or gain, and those only, enter into the computation which are earned or ascertained in the year to which the enquiry refers; and in like manner, only those elements of loss or expense enter into the computation which are suffered or incurred during that year.
The same principle, in our opinion, would be applicable to the facts of this case.
The decision of this Court in Commissioner of Income tax, Bombay vs Ahmedbhai Umarbhai & Co., Bombay, 18 I.T.R. 472 related entirely to a different context where certain part of the activities occurred at Raichur and the sales took place in Bombay, the question was whether the activity which the assessee carried on at Raichur was part of their business within the meaning of the third proviso to section 5 of the Act, that the profits of a part of the business, the manufacturing of oil in their mills at Raichur, accused or arose at Raichur and that such profits were not assessa ble to excess profits tax under the third proviso to Section 5 of the Act.
That is not the controversy here.controversy is not so much where the profits arose nor is the controver sy whether the profits arose during the chargeable account ing period but where the profits arose during the 'account ing period ' and as such whether the deficiency of the prof its not arising during 'counting period ' but during the 'chargeable accounting period ' could be set off without computation.
The method of computation under section 7 of the Act must be on the basis of 'accounting period ' and after that the deficiency in profits for that period should be computed on that basis and after set off carried forward to be set off during the chargeable accounting period.
It is thus an harmonious construction of 615 the different provisions of the Act is possible and the true excess profits, if any, as contemplated by the Act be deter mined.
The concept of 'accounting period ' in the background of the 'chargeable accounting period ' can thus be harmo nised.
The accounting period was 1st April, 1943 to 31st March, 1944.
In the facts of the case we are of the opinion that the question must be answered in the negative and in favour of the revenue.
The appeal is allowed and the judg ment and order of the High Court are set aside.
In the facts and circumstances of the case, parties will pay and bear their own costs.
A.P.J. Appeal allowed.
[/INST]Rule 51(A) of Chapter XIV(A) of the Kerala Education Rules provided that qualified teachers who are relieved as per Rules 49 or 52 or on account of termination of vacancies shall have preference for appointment to future vacancies in schools under the same Education Agency.
A Note was appended to this Rule on 4.7.1972 which provided that if there are more than one claimant under this Rule the order of the preference shall be according to the date of first appoint ment.
If the date of first appointment is the same, then preference shall be decided with reference to age, the older being given the first preference.
In making such appoint ment, due regard should be given to requirement of subjects and to the instructions issued by the Director under sub Rule(4) of Rule 1 as far as High Schools are concerned.
The appellant, who was duly qualified, was appointed as a teacher in a temporary vacancy in the school of the first respondent from 13.1.1970 and her appointment was approved by the District Educational Officer, the second respondent.
On the vacancy being ceased to exist she went out of job on 16.3.1970.
She again worked in a further vacancy from 22.8.70 to 17.12.1970.
She went out of service when this vacancy ceased.
Respondent No. 4, another teacher, worked in the same school in another leave vacancy from 1.9.1970 to 26.11.1970.
In the academic year 1971 72 a permanent vacancy arose for Social Studies.
The appellant being a Social Studies teacher made a representation claiming appointment against that vacancy.
But the first 437 respondent appointed the 4th respondent.
On a complaint being made by the appellant, the second respondent found the appointment of the 4th respondent irregular and held that the legitimate claimant for the permanent post was the appellant and, therefore, did not approve the appointment of the 4th respondent.
The Regional Deputy Director of Public Instructions, respondent No. 3, allowed the appeal of the management.
The appellant filed a petition under Article 226 challenging the validity of the order passed by the third respondent, inter alia, contending that she had a preferen tial claim and that the appointment of the 4th respondent was illegal.
A Single Judge dismissed the petition on the ground that Rule 51(A) conferred a right on the appellant for appointment in the future vacancies in the school and it did not restrict the right of the management to make his own choice among the thrown out teachers.
The Division Bench also dismissed the appeal preferred by the appellant.
On the question whether a teacher who had worked in a vacancy earlier has preferential right over a teacher who worked later in the same school, allowing the appeal, HELD: l. Rule 51(A) of Chapter XIV(A) of the Kerala Education Rules does not mandate that the one who worked earlier should be preferred to the one who worked later.
[441B] 2.1 Although a Note to a Rule does not have any bind ing effect, it does indeed have a persuasive force.
[441E] 2.2 It cannot be ignored that the Note has come as an appendage to Rule 51(A) for qualificatory purposes though it does not form a part of the Rule.
[441F] 3.
The preference in Rule 51(A) should be based on priority of title.
[442G] 4.
The High Court while interpreting Rule 51(A) was influenced more by the words in the abstract contained in the Rule and not fairness behind the Rule.
The interpreta tion given by the High Court to this Rule can result in abuse of discretionary power with the management.
If the Government wanted to clothe the Manager with the power to choose among rival contendors to a future vacancy, the Rule should be suitably amended.
[443C D] 438 5.
The Rule as it stands clearly confers priority to the earlier appointee.
The appellant, therefore, is entitled to succeed.
The appellant will be entitled to all the benefits as though she was appointed when the vacancy in question arose.
However, this will not enable her to draw salary for the period she had not worked but only other benefits such as seniority, increments etc.
[443D F]
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<s>[INST] Summarize the judgementAppeal No. 425 of 1957.
Appeal from the judgment and order dated February 21, 1956, of the Patna High Court in Misc.
Judicial Case No. 53 of 1955.
B. K. P. Sinha and D. P. Singh, for the appellants.
L. K. Jha and R. C. Prasad, for the respondent.
May 3.
The Judgment of the Court was delivered by 688 SUBBA RAO, J.
This appeal by certificate raises the question of the construction of section 4(h) of the Bihar Land Reforms Act, 1950 (Act 30 of 1950) (hereinafter referred to as the Act), as amended by the Bihar Land Reforms (Amendment) Act, 1959 (Bihar Act 16 of 1959) (hereinafter called the Amending Act).
The facts giving rise to the appeal lie in a small compass.
Plots NOW.
383 and 1033 are tanks in village Lakshmipur alias Tarauni in the District of Darbhanga.
The respondent claims to have taken settlement of the said plots in the year 1943 from the landlords of Raghopur Estate of which the said plots formed a part.
After the coming into force of the Act, the said Estate vested in the State of Bihar.
Thereafter, one Sheonandan Jha and some other villagers of Lakshmipur filed a petition before the Collector alleging that the alleged settlement was not true, and that in fact the settlement was nominally effected only after January 1, 1946.
The Additional Collector, Darbhanga, in exercise of the powers conferred on him under section 4(h) of the Act, held that the said settlement was actually made after January 1, 1946, and that it was only a paper transaction; having annulled the said settlement, the Additional Collector, by his order dated January 18, 1955, called upon the respondent to give up possession of the said plots by January 30, 1955.
Aggrieved by the said order, the respondent filed a petition in the High Court of Judicature at Patna under article 226 of the Constitution for a rule in the nature of a writ of mandamus or any other appropriate writ cancelling the order of the Additional Collector dated January 18, 1955, and res training the appellants from interfering with his possession of the said two plots.
That petition came to be decided by a division bench of the High Court; and the learned Judges by their order dated February 21, 1956, held that the Additional Collector had no jurisdiction to entertain and decide the question whether the settlement, which was prima facie shown to have been made before January 1, 1946, was actually made after that date.
On the basis of that finding, the order of the Additional Collector was set aside.
689 The State of Bihar and the Additional Collector of Darbhanga have preferred the present appeal against the said order.
Learned counsel for the State contends that section 4(h) of the Act has been amended with retrospective effect, that under the amended section the Collector has power to decide whether a transfer is made before 1946 or thereafter, and that, therefore, the order of the High Court can no longer be sustained.
Learned counsel for the respondent, while conceding the retroactivity of the amendment, relies upon the second proviso added by the amendment to section 4(h) and contends that under the said proviso the order of the Collector cannot take effect nor possession taken thereunder, unless the said order has been confirmed by the State Government and that in the instant case there has not been any such confirmation.
Further he questions the constitutional validity of the said section on the ground that it infringes the fundamental right of the respondent under articles 14, 19 and 31 of the Constitution and is not saved by article 31A thereof.
The second contention of learned counsel for the respondent may be disposed of first.
Under article 31A of the Constitution, no law providing for the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such 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 19 or article 31.
The question is whether section 4(h) of the Act is such a law as to be hit by article 31A of the Constitution.
Section 4(h) of the Act confers power on a Collector, inter alia, to make inquiries in respect of any transfer of any land comprised in an estate and to cancel the same if he is satisfied that such transfer was made any time after January 1, 1946, with the object of defeating any provisions of the Act or causing loss to the State or obtaining compensation thereunder.
It is said that the section ex proprio vigore does not provide for acquisition by the State of any estate or of 690 any rights therein or for the extinguishment or modification of any such rights and therefore, is not protected by article 31A of the Constitution This argument in effect disannexes section 4(h) of the Act from the setting in which it appears and seeks to test its validity independently of its interaction on the other provisions of the Act.
Section 4(h) is an integral part of the Act, and taken out of the Act it can only operate in vacuum.
Indeed, the object of the section is to offset the anticipatory attempts made by landlords to defeat the provisions of the Act.
Suppose the Collector cancels a transfer of land by the owner of an estate under the said section; the said land automatically vests in the State, with the result that the rights of the transferor and the transferee therein are extinguished.
The said result accrues on the basis that the said land continued to be a part of the estate at the time the Act came into force.
That apart, the section is a part of the Act designed to extinguish or modify the rights in an estate, and the power conferred on a Collector to cancel a transfer of any land in an estate is only to prevent fraud and to achieve effectively the object of the Act.
This question was directly raised and answered by this Court in Thakur Raghubir Singh vs State of Ajmer (1).
There, the constitutional validity of the Ajmer Abolition of Intermediaries and Land Reforms Act, 1955 (Ajmer III of 1955) and section 8 thereof was attacked.
Section 8 of the said Act conferred a power on the Collector to cancel a lease or contract, if he was satisfied that it was not made or entered into in the normal course of management, but in anticipation of legislation for the abolition of intermediaries.
Repelling the said contention, Wanchoo, J., speaking for the Court, observed thus: "The provision is not an independent provision; it is merely ancillary in character enacted for carrying out the objects of the Act more effectively.
Such cancellation would sub serve the purposes of the Act, and the provision for it therefore be an integral part of the Act, though ancillary to its main object, and would thus be protected under article 31A(1)(a) of the Constitution." (1) [1959] SUPP.
1 S.C.R. 478.
691 The same reasoning applies to section 4(h) of the Act, and for the same reasons we hold that section 4(h) of the Act is likewise protected by article 31A of the Constitution.
The first question turns upon the interpretation of the relevant provisions of the Amending Act.
To appreciate the argument it would be convenient to read the material provisions of the said Act.
Section 3.
Amendment of section 4 of Bihar Act XXX of 1950.
In section 4 of the said Act, (iv) in clause (h) (a) the words, figures and commas "made at any time after the first day of January, 1946," shall be omitted and shall be deemed always to have been omitted; (b) after the words "if he is satisfied that such transfer was made," the words, figures and commas "at any time after the first day of January, 1946," shall be inserted and shall be deemed always to have been inserted; and (c) the words "and with the previous sanction of the State Government" shall be omitted; (v) to clause (h) as amended above, the following provisos shall be added, namely: "Provided that an appeal against an order of the Collector under this clause, if preferred within sixty days of such order, shall lie to the proscribed authority not below the rank of the Collector of a district who shall dispose of the same according to the prescribed procedure: Provided further that no order annulling a transfer shall take effect nor &hall possession be taken in perursuance of it unless such an order has been confirmed by the State Government." After the said amendment the relevant part of the section reads: The Collector shall have power to make inquiries in respect of any transfer including the settlement. . if he is satisfied that such transfer was made at any time after th e first day of January, 1946, with the object of defeating any provisions of this Act or causing loss to tile State or obtaining higher 692 compensation thereunder, the Collector may, after giving reasonable notice to the parties concerned to appear and be heard and with the previous sanction of the State Government annul such transfer, dispossess the person claiming under it and take possession of such property on such terms as may appear to the Collector to be fair and equitable.
The main differences material to the present enquiry between the section as it was before.
the amendment and thereafter are that under the unmended section it was a moot point whether the Collector had the power to set aside a transfer, whether it was effected before or after January 1, 1946; whereas under the amended section such a power is clearly and expressly conferred on him: while under the original section, the Collector had to take the previous sanction of the State Government before he made the order annulling a transfer and dispossessing the person claiming under it, under the amended section the order made by the Collector shall neither take effect nor can he take possession before his order is confirmed.
The short question is whether the second proviso, added by the Amending Act, is retrospective in operation, that is, whether the order of the Collector made before the Amending Act, though made with the previous sanction of the State Government, would still require for its taking effect a subsequent confirmation by the State Government.
Learned Counsel for the State contends that the amendments made by section 3(iv)(a) and (b) are retrospective, but the amendment made by section 3(v) of the Amending Act is prospective.
This contention appears to be sound, both in letter as well as in spirit.
The different phraseology used in cls.
(a) and (b) of subs.
(iv) of section 3 of the Amending Act in the matter of omissions supports it.
While in cl.
(a) the omission ,%hall be deemed always to have been omitted, in cl.
(c) the words mentioned therein shall only be omitted indicating by contrast that the omission in the former is expressly made retrospective while in the latter it is necessarily prospective.
, If that be the true con struction, the condition of previous sanctions would 693 continue to operate in respect of the Collector 's order made before the amendment came into force.
If the proviso be given a retrospective operation, it directly comes into conflict with the result brought about by cl.
(c) of sub section
(iv) of section 3 of the Amending Act.
An order with the previous sanction of the Government may have been passed and possession also taken by the Collector, yet a further confirmation by the Government should be sought for to revalidate it.
This construction would not only attribute to the Legislature redundancy but would also enable a party to seek for restoration of the land taken possession of by the Collector on the basis of a technicality.
Even in a case where possession has not been taken by the Collector, the said anomaly would persist, for two sanctions would be required.
The alternative construction makes the working of the section smooth and avoids the introduction of the said incongruity and, therefore, we prefer to accept it, particularly when it is consistent with the plain meaning of the words used in the section.
The result is that in respect of an order already made by the Collector before the Amending Act, the previous sanction obtained would suffice, and in respect of an order made after the Amending Act, a subsequent confirmation by the State Government is required.
Even so, it is argued by learned counsel for the respondent that the High Court, presumably in view of its acceptance of the respondent 's preliminary point, did not consider the question whether the inquiry had been made by the Collector in strict compliance with the provisions of the section, and whether the previous sanction of the State Government was obtained before he made the said order.
In the affidavit filed in support of the petition in the High Court there is no specific allegation that no such inquiry has been made or that no such sanction has been obtained.
Nor did the counsel for the appellant raise the said question in the arguments before the High Court.
In the circumstances we do not think that this Court is justified in allowing 88 694 the respondent to raise the said question for the first time before us.
We, therefore, reject this plea.
In the result we set aside the order of the High Court and allow the appeal.
But, in the circumstances of this case, we direct the parties to bear their own costs here and in the High Court.
Appeal allowed.
[/INST]Section 4(h) of the Bihar Land Reforms Act, 1950, as amended by the Bihar Land Reforms (Amendment) Act, 1959, which empowers the Collector to annul anticipatory transfers of land designed to defeat the object of the Act, is protected by article 31A of the Constitution although it does not by itself provide for the acquisition by the State of any estate or of any rights therein or for the extinguishment or modification of any such rights and its constitutional validity cannot be questioned under articles 14, 19 and 31 of the Constitution since the Act of which it is an integral part, is itself directed to that end and is protected by that Article.
Thakur Raghubir Singh vs State of Ajmer, [1959] Supp. 1 S.C.R. 478, applied.
On a true construction of section 3 of the Amending Act, the second proviso to section 4(h) cannot be retrospective in operation and therefore, in respect of an order of annulment made by the Collector before the Amending Act came into force the previous sanction obtained from the State Government would be sufficient, but subsequent confirmation by the State Government would be necessary in the case of an order made after the Amending Act came into force.
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<s>[INST] Summarize the judgement: Writ Petition No. 153 of 1966.
(Under Article 32 of the Constitution of India for enforcement of the Fundamental Rights) And Writ Petition No. 202 of 1966.
(Under Article 32 of the Constitution of India for enforce ment of the Fundamental Rights) And Writ Petition No. 205 of 1966.
(Under Article 32 of the Constitution of India for enforcement of the Fundamental Rights) 778 In Writ Petition No. 153 of 1966.
R. V. section Mani, section K, Mehta and K. L. Mehta, for the petitioners.
Niren,De, Additional Solicitor General of India,and R. N. Sachthey, for the Respondents.
Niren De, Additional Solicitor General of India,G.Rajagopal, and R. H. Dhebar,for Intervener Ng.
1. section D. Banerjee, Advocate General for the State of West Bengal, B. Sen and P. K. Bose,for Intervener No.2.
Lal Narain Sinha, Advocate General for the State of Bihar, Bajrang Saha, M. M. Gajadhar, K. M. K. Nair, D. P. Singh, M. K. Ramamurthi, R. K. Garg, section C. Agarwala and G. D. Gupta, for Intervener No. 3.
Mohan Kumaramangalam., Advocate General for the State of Madras, B. Ramamurthi and A. V. Rangam, for Intervener No. V. D. Mahajan and R. H. Dhebar, for Intervener No., 5.
K. L. Mishra, Advocate General for the State of Uttar Pradesh, and O. P. Rana, for Intervener No., 6.
V. A. Seyid Muhamad, Advocate General for the State of Kerala, B. R. L. Iyengar, A. G. Pudissery, for Intervener No. 7.
Naunit Lal, for Intervener No. 8.
K. B. Mehta, for Intervener No. 9.
P. Ram Reddy and T. V. R. Tatachari, for Intervener No. 10.
M. C. Stealvad, B. R. L. Iyengar and R. H. Dhebar, for Inter vener No. 11.
R. Thiagarajan, for Intervener No. 12.
D. N. Mukherjee, for Interveners Nos. 13 and 19 to 21.
E. Udayairatnam, section section Dalal and D. D. Sharma, for Inter veners Nos. 14 and 15.
R. K Garg, D. P. Singh, M. K. Ramamurthi, section C. Agarwala, G. D. Gupta and K. M. K. Nair ' for Intervener No. 16. 'K. Parasaran and K. R. Chaudhuri, for Intervener No. 17.
Basudev Prasad, K. Parasaran and K. R. Chaudhuri, for Intervener No. 18.
Basudev Prasad, K. Rajendra Chaudhuri, K. R. Chaudhuri and section N. Prasad, for Interveners Nos.
22 to 24.
779 in Writ Petition No. 202 of 1966.
M.K. Nambyar, K. B. Jinaraja Hegde, N. A., Subramaniam, Bhuvanesh Kumari, O. C. Mathur, J. B. Dadachanji and Ravin der Narain, for the Petitioner.
H. R. Gokhale, B. P. G. K. Achar, K. H. Dhebar, R. N. Sachthey and section P. Nayyar, for Respondent No. 1.
Niren De, Additional Solicitor General, N. section Bindra and R. N. Sachthey, for Respondent No. 2.
A. K. Sen, F. section Nariman, M. L. Bhakte, section I. Thakere, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for Intervener No. 1.
N. A. Palkhiwala, F. section Nariman, M. L. Bhakte, D. M. Popat,0.
P. Malhotra, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for Intervener No. 2. D. M., Parulekar B. Dutta, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for Intervener No. 3.
In Writ Petition No. 205 of 1966.
M. K. Nambyar, K. B. Jinaraja Hegde, N. A. Subramaniam, Bhuvanesh Kumari, O. C. Mathur, J. B. Dadachanji and Ravin der Narain, for the Petitioner.
H. R. Gokhale, B. R. G. K. Achar, R. H. Dhebar and section P. Nayyar, for Respondent No. 1. section G. Patwardhan, D. M. Parulekar, B. Dutta, section K. Dhelika, 1.
B. Dadachanji, O. C. Mathur and Ravinder Narain, for the Intervener.
The Judgment Of SUBBA RAO, C.J., SHAH, SIKRI, SHELAT and VAIDIALINGAM, JJ. was delivered by SUBBA RAO, C.I. According to this Judgment (i) the power to amend the Constitution is not to be found in article 368 but in articles 245, 246 and 248 read with Entry 97 of List 1; (ii) the amending power can.
not be used to abridge or take away the fundamental rights guaranteed in Part III of the Constitution; (iii) a law amending the Constitution is "Law" within the meaning of article 13(2) and (iv).
the First, Fourth and Seventeenth Amendments though they abridged fundamental rights were valid in the past on the basis of earlier decisions of this Court and continue to be valid for the future.
On the application of the doctrine of "prospective over ruling", as enunciated in the judgment, the decision will have only prospective operation and Parliament will have no power to abridge or take away Fundamental Rights from the date of the judgment.
The Judgment of WANCHOO, BHARGAVA and MITTER, JJ. was delivered by WANCHOO, J.
According to this Judgment (i) the 780 power of amending the Constitution resides in article 368 and not in articles 245, 246 and 248, read with EntrY 97 of List 1; (ii) there, are no restrictions on the power if the procedure in article 368 is followed and all the Parts of the Constitution including Part III, can be amended, (iii) an amendment of the Constitution is not " 'law" under article 13(2); and (iv) the doctrine of "prospective overruling" cannot be applied in India.
HIDAYATULLAH, J. delivered a separate judgment agreeing with SUBBA RAo, CJ.
on the following two points: (i) that the power to amend the Constitution cannot be used to abridge or take away fundamental rights; and (ii) that a law amending the Constitution is "law" under article 13 (2).
He agrees With WANCHOO, J. that the power to amend does not reside in articles 245 and 248 read wish Entry 97 of List 1. article 368, according to him, is sui generis and procedural and the procedure when correctly followed, results in an amendment.
He does not rely on the doctrine of "prospective overruling".
As regards the First, Fourth and Seventh Amendments, these having long enured and been acquiesced in, he does not treat the question of their validity as being before him.
As regards the Seventeenth Amendment he finds sufficient support for it in the Constitution as amended by the First, Fourth and Seventh Amendments and holds that the new definition of "estate", introduced by the Amendment, though it is "law" under article 13 (2) and is an inroad into fundamental rights, is beyond the reach of the courts because it falls within the word "law" in articles 31 (1), (2), 2A and 31A(1).
He, however, declares section 3 of the Seventeenth Amendment Act ultra vires the amending process as an illegitimate exercise of the amending power.
[BACHAWAT and RAMASWAMI, JJ. delivered separate judgments concurring with WANCHOO, J.] Subbarao, C.J.
These three writ petitions raise the important question of the validity of the Constitution (Seventeenth Amendment) Act, 1964.
Writ Petition No. 153 of 1966, is filed by the petitioners therein against the State of Punjab and the Financial Commissioner, Punjab.
The petitioners are the son, daughter and granddaughters of one Henry Golak Nath, who died on July 30, 1953.
The Financial Commissioner, in revision against the order made by the Additional Commissioner, Jullundur Division, held by an order dated January 22, 1962 that an area of 418 standard acres and 9 1/4 units was surplus in the hands of the petitioners under the provisions of the Punjab Security of Land Tenures Act X of 1953, read with section 10 B thereof.
The petitioners, alleging that the relevant provisions of the said Act where under the said area was 781 declared surplus were void on the ground that they infringed their rights under cls.
(f) and (g) of article 19 and article 14 of the Constitution, filed a writ in this Court under article 32 of the Constitution for a direction that the Constitution (First Amendment) Act 1951, Constitution (Fourth Amendment) Act, 1955, Constitution (Seventeenth Amendment) Act, 1964, insofar as they affected their fundamental rights were unconstitutional and inoperative and for a direction that section 10 B of the said Act X of 1953 was void as violative of articles 14 and 19 (1) (f) and (g) of the Constitution.
Writ Petitions Nos. 202 and 203 of 1966 were filed by different petitioners under article 32 of the Constitution for a declaration that the Mysore Land Reforms Act (Act 10 of 1962) as amended by Act 14 of 1965, which fixed ceilings on land holdings and conferred ownership of surplus lands on tenants infringed articles 14, 19 and 31 of the Constitution and, therefore, was unconstitutional and void.
The States of Punjab and Mysore, inter alia, contended that the said Acts were saved from attack on the ground that they infringed the fundamental rights of the petitioners by reason of the Constitution (Seventeenth Amendment) Act, 1964, which, by amending article 31 A of the Constitution and including the said two Arts in the 9th Schedule thereto, had placed them beyond attack.
In Writ Petition No. 153 of 1966, 7 parties intervened.
In Writ Petition No. 202 of 1966 one party intervened.
In addition, in the first petition, notice was given to the Advocates General of various States.
A11 the learned counsel appearing for the parties, the Advocates General appearing for the States and the learned counsel for the interveners have, placed their respective viewpoints exhaustively before us.
We are indebted to all of them for their thorough preparation and clear exposition of the difficult questions of law that were raised in the said petitions.
At the outset it would be convenient to place briefly the respective contentions under different heads : (1) The Constitution is intended to be permanent and, therefore, it cannot be amended in a way which would injure, maim or destroy its indestructible character.
(2) The word "amendment" implies such an addition or change within the lines of the original instrument as will effect an improvement or better carry out the purpose for which it was framed and it cannot be so construed as to enable the Parliament to destroy the permanent character of the Constitution.
(3) The fundamental rights are a part of the basic structure of the Constitution and, therefore, the said power can be exercised only to preserve rather than destroy the essence of those rights.
(4) The limits on the power to amend are implied in article 368, for the 782 expression "amend" has a limited meaning.
The wide phraseo logy used in the Constitution in other Articles, such as "repeal" and "re enact" indicates that article 368 only enables a modification of the Articles within the framework of the Constitution and a destruction of them.
(5) The debates in the Constituent Assembly, particularly the speech of Mr. Jawahar Lal Nehru, the first PA= Minister of India, and the reply of Dr. Ambedkar, who piloted the Bill disclose clearly that it was never the intention of the makers of the Constitution by putting in article 368 to enable the Parliament to repeal the fundamental rights, the circumstances under which the amendment moved by Mr. H. V. Kamath, one of the members of Constituent Assembly, was withdrawn and article 368 was finally adopted, support the contention that amendment of Part II, is outside the scope of article 368.
(6) Part III of the Constitution is a self contained Code.
and its provisions are elastic enough to meet all reasonable requirements of changing situations.
(7) The power to amend is sought to be derived from three sources, namely, (i) by implication under article 368 itself; The procedure to amend culminating in the amendment of the Constitution necessarily implies that power, (ii) the power and ,the limits of the power to amend are implied in the Articles sought to be amended, and (iii) article 368 only lays down the procedure to amend, but the power to amend is only the legislative power conferred on the Parliament under articles 245, 246 and 248 of the Constitution.
(8) The definition of "law" in article 13(2) of the Constitution includes every branch of law, statutory, constitutional, etc., ' and therefore, the power to amend in whichever branch it may be classified, if it takes away or abridges fundamental rights would be void thereunder.
(9) The impugned amendment detracts from the jurisdiction of the High Court under article 226 of the Constitution and also the legislative powers of the States and therefore it falls within the scope of the proviso to article 368.
The said summary, though not exhaustive, broadly gives the various nuances of the contentions raised by the learned counsel, who question the validity of the 17th Amendment.
We have not noticed the other arguments of Mr. Nambiar, which are peculiar to the Writ Petition No. 153 of 1966 as those questions do not arise for decision, in the view we are taking on the common questions.
On behalf of the Union and the States the following points were pressed : (1) A Constitutional amendment is made in exercise of the sovereign power and not legislative power of Parliament and,.
therefore, it partakes the quality and character of the Constitution itself.
(2) The real distinction is between a rigid and a flexible Constitution.
The distinction is based upon the express limits of the amending power.
(3) The provisions of article 783 368 axe clear and unequivocal and there is no scope for invoking implied limitations on that power: further the doctrine of impliedpower has been rejected by the American courts and jurists.
(4) The object of the amending clause in a flexible Consetitution is to enable the Parliament to amend the Constitution in order to express the will of the people according to the changing course of events and if amending power is restricted by implied limitations, the Constitution itself might be destroyed by revolution.
Indeed, it is a safety valve and an alternative for a violent change by revolution.
(5) There are no basic and non basic features of the Constitution; everything in the Constitution is basic and it can be amended in order to help the future growth and progress of the country.
(6) Debates.
in the Constituent Assembly cannot be relied upon for construing article 368 of the Constitution and even if they can be, there is nothing in the debates to prove, positively that fundamental rights were excluded from amendment.
(7) Most of the amendments are made out of political necessity: they involve, questions, such.
as, how to exercise power,, how to make the lot of the citizens better and the like and, therefore, not being judicial questions, they are outside the court 's jurisdiction.
(8) The language of article 368 is clear, categorical, imperative and universal, on the other hand, the language of article 13(2) is such as to admit qualifications or limitations and, therefore, the Court must construe them in such a manner as that Article could not control article 368.
(9) In order to enforce the Directive Principles the Constitution was amended from time to time and the great fabric of the Indian Union has been built since 1950 on the basis that the Constitution could be amended and, therefore, any reversal of, the previous I decisions would introduce economic chaos in our country and that, therefore, the burden is very heavy uponthe petitioners to establish that the fundamental rights cannot be amended under article 368 of the Constitution.
(10) article 31 A and the 9th Schedule do not affect the power of the High Court under article 226 or the legislative power of the States though the area of their operation is limited and, therefore, they do not fall within the scope of the proviso to article 3 68.
The aforesaid contentions only represent a brief summary of elaborate arguments, advanced by learned counsel.
We shall deal in appropriate context with the other points mooted before US.
It will be convenient to read the material provisions of theConstitution at.
this stage.
Article 13(1) (2) The State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, toy the extent of the contravention, be void.
784 (3) In this article, unless the context otherwise requires, (a) "law" includes any Ordinance, order, bye law, rule regulation, notification, custom or usage having in the territory of India the force of law.
Article 31 A(1), Notwithstanding anything contained in article 13, no law providing for, (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 19 or article 31.
(2) (a) the expression "estate" shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenure in force in that area and shall also include, (ii) any land held under ryotwari settlement, (iii) any land held or let for purposes of agriculture or for purposes ancillary thereto.
Article 31 D. Without prejudice to the generality of the provisions contained in article 31 A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and not withstanding any judgment decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.
In the Ninth Schedule to the Constitution the Mysore Land Reforms Act, 1961, (Mysore Act 10 of 1962) is included as item 51 and the Punjab Security of Land Tenures Act, 1953 (Punjab Act 10 of 1953) is included as item 54.
The definition of "estate" was amended and the Ninth Schedule was amended by including therein the said two Acts by the Constitution (Seventeenth Amendment) Act, 1964.
785 The result of the said amendments is that both the said Acts dealing with estates, within their wide definition introduced by the Constitution (Seventeenth Amendment) Act, 1964, having been included in the Ninth Schedule, are placed beyond any attack on the ground that their provisions are inconsistent with or take away or abridge any of the rights conferred by Part III of the Constitution.
It is common case that if the Constitution (Seventeenth Amendment) Act, 1964, was constitutionally valid, the said Acts could not be impugned on any of the said grounds.
The question of the amendability of the fundamental rights was considered by this Court earlier in two decisions, namely, Sri Sankari Prasad Singh Deo vs Union of India and State of Bihar(1) and in Sajjan Singh vs State of Rajasthan (2) In the former the validity of the Constitution (First Amend ment) Act, 1951, which inserted, inter alia, articles 31 A and 31 B in the Constitution, was questioned.
That amendment was made under article 368 of the Constitution by the Provisional Parliament.
This Court held that Parliament had power to amend Part III of the Constitution.
The Court came to that conclusion on two grounds, namely, (1) the word "law" in article 13(2) was one made in exercise of legislative power and not constitutional law made in exercise of constituent power; and (ii) there were two articles (articles 13(2) and 368) each of which was widely phrased and, therefore, harmonious construction required that one should be so read as to be controlled and qualified by the other, and having regard to the circumstances mentioned in the judgment article 13 must be read subject to article 368.
A careful perusal of ' the judgment indicates that the whole decision turned upon an assumption that the expression "law" in Art 13(2) does not include constitutional law and on that assumption an attempt was made to harmonise Article 13 (2) and 368 of the Constitution.
The decision in Sajjan Singh 's case(2) was given in the con text of the question of the validity of the Constitution (Seventeenth Amendment) Act, 1964.
Two questions arose in that case: (1) Whether the amendment Act insofar it purported to take away or abridge the rights conferred by Part III of the Constitution fell within the prohibition of article 13(2) and (2) Whether Articles 31 A and 31 B sought to make changes in articles 132, 136 or 226 or in any of the lists in the Seventh Schedule and therefore the requirements of the proviso to Article 368 had to be satisfied.
Both the Chief Justice and Mudholkar, J. made it clear that the first contention was not raised before the Court.
The learned counsel appearing for both the parties accepted the correctness of the decision in Sankari Prasad 's case(1) in that (1) ; ,105.
(2) ; , 946, 950, 959, 961, 963.
786 regard.
Yet Gajendragadkar, C.J. speaking for the majority ,agreed with the reasons given in Sankari Prasad 's case(1) on the first question and Hidayatullah and Mudholkar, JJ.
expressed their dissent from the said view.
But all of them agreed, though for different reasons on the second question.
Gajendragadkar, C.J. speaking for himself, Wanchoo and Raghubar Dayal, JJ. rejected the contention that article 368 did not confer power on Parliament to take.
away the fundamental rights guaranteed by Part III.
When a suggestion was made that the decision in the aforesaid case should be reconsidered and reviewed, the learned Chief Justice though he conceded that in a case where a decision had a significant impact on the fundamental rights of citizens, the Court would be inclined to review its earlier decision in the interests of the public good, he did not find considerations of substantial and compelling character to do so in that case.
But after: referring to the reasoning given in Sankari Prasad 's case(1) the; learned Chief Justice observed "In our opinion , the expression "amendment of the, Constitution" plainly and unambiguously means amendment of all the provisions of the Constitution.
" Referring, to article 13 (2), he restated the same reasoning found in, the earlier decision and added that if it was the intention of the Constitution makers to save, fundamental rights from the amending,process they should have taken the precaution of making A .
clear provision in that regard.
In short, the majority, speaking through Gajendragadkar, C.L agreed that no case had been made, out for reviewing the earlier decision and practically accepted the reasons given in the earlier decision.
Hidyatullah J. speaking for himself, observed "But I make it clear that I must not be understood to have subscribed to the view that the word "law" in article 13(2) does not control constitutional amendments.
, I reserve my opinion on that case for I apprehend that it depends on how wide is the "law"in that Article." After giving his reasons for doubting the correctness of the reasoning given in Sankari Prasad 's case(1), the learned Judge concluded thus : "I would require stronger reasons than those given in Sankari Prasad 's case(1) to make me accept the view that Fundamental Rights were not really fundamental but were intended to be within the powers of amendment in common with the other parts of the Constitution and without the concurrence of the States." (1) ; 787 The.
learned Judge continued "The Constitution gives so many assurances in Part III that it would be difficult to think that they were the playthings of a special majority.
" Mudholkar, J. was positive that the result of a legislative action of a legislature could not be other than "law" and, therefore, it seemed to him that the fact that the legislation dealt with the amendment of a provision of the Constitution would not make, its results anytheless a 'law".
He further pointed out that article 368 did not say that whenever Parliament made an amendment to the Constitution it assumed a different capacity from that of a constituent body.
He also brought out other defects in the line of reasoning adopted in Sankari Prasad 's case(1).
It will, therefore,be seen that the correctness of the decision in Sankari Prasad 's case(1) was not questioned in Sajjan Singh 's case(2) Though it was not questioned, three of the learned Judges agreed with the view expressed therein, but two learned Judges were inclined to take a different view.
But, as that question was not raised, the minority agreed with the conclusion, arrived at by the majority on the question whether the Seventeenth Amendment Act was, covered by the proviso.
to article 368 of the Constitution.
The conflict between the majority and the minority in Sajjan 's Singh 's case(1) falls to be resolved in this case.
The said conflict and, the great importance of the question raised is the justification for . the Constitution of the larger Bench.
, The decision in Sankri Prasad 's case(1) was assumed to be correct in subsequent decisions of this Court.
See section Krishnan vs State of Madras(1), The State ' of West Bengal vs Anwar All Sarkar(1) and Basheshar Nath vs The Commissioner of Income tax, Delhi and Rajasthan(5).
But nothing turns upon that fact, as the correctness of the derision was not questioned .
in those cases.
A correct appreciation of the scope and the place of funda mental rights in our Constitution will give its the right perspective for solving the problem presented before us, Its scope cannot be appreciated unless we have a conspectus of the Constitution, its objects.
and its machinery to achieve those object.
The objective sought to be achieved by the Constitution is declared in sonorous terms.
in its preamble which reads "We the people of India having solemnly resolved to constitute India into a Sovereign, Democratic, Republic and to secure to all its citizens justice.
liberty.
equality.
and fraternity .
(1) ; (3) ; at page 652.
(2) [1965] 1 S.C.R.933.
(4) ; , 366.
(5) [1959] Supp. 1 S.C.R. 528,563.
788 It contains in a nutshell, its ideals and its aspirations.
The preamble is not a platitude but the, mode of its realisation is worked out in detail in the Constitution.
The Constitution brings into existence different constitutional entities, namely, the Union, the States and the Union Territories.
It creates three major instruments of power, namely, the Legislature, the Executive and the Judiciary.
It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits.
They should function within the spheres allotted to them.
Some powers overlap and some are superseded during emergencies.
The mode of resolution of conflicts and conditions for supersession are also prescribed.
In short, the scope of the power and the manner of its exercise are regulated by law.
No authority created under the Constitution is supreme; the Constitution is supreme; and all the authorities function under the supreme law of the land.
The rule of law under the Constitution has a glorious content.
It embodies the.
modem concept of law evolved over the centuries.
It empowers the Legislatures to make laws in respect of matters enumerated in the 3 Lists annexed to Schedule VII.
In Part IV of the Constitution, the Directive Principles of State Policy are laid down.
It enjoins it to bring about a social order in which justice, social.
economic and political shall inform all the institutions of national life.
It directs it to work for an egalitarian society where there is no concentration of wealth, where there is plenty, where there is equal opportunity for all, to education, to work, to livelihood '.
and where there is social justice.
But, having regard to the past history of our country, it could not implicitly believe the representatives of the people, for uncontrolled and unrestricted power might lead to an authoritarian State.
It, therefore, preserves the natural rights against the State encroachment and constitutes the higher judiciary of the State as the sentinel of the said rights and the balancing wheel between the rights, subject to social control.
In short, the fundamental rights, subject to social control, have been incorporated in the rule of law.
That is brought about by an interesting process.
In the implementation of the Directive Principles, Parliament or the Legislature of a State makes laws in respect of matter or matters allotted to it.
But the higher Judiciary tests their validity on certain objective criteria, namely, (i) whether the appropriate Legislature has the legislative competency to make the law; (ii) whether the said law infringes any of the fundamental rights; (iii) even if it Infringement the freedoms under article 19, whether the infringement only amounts to "reasonable restriction" on such rights in "public interest.
" By this process of scrutiny, the court maintains the validity of only such laws as keep a just balance between freedoms and social control.
The duty of reconciling fundamental rights in article 19 and the laws of social control is cast upon the courts 789 and the touchstone or the standard is contained in the said two expressions.
The standard is an elastic one; it varies with time, space and condition.
What is reasonable under certain circumstances may not be so under different circumstances.
The constitutional philosophy of law is reflected in Parts 1111 and IV of the Constitution.
The rule of law under the Constitution serves the needs of the people without unduly infringing their rights.
It recognizes the social reality and tries to adjust itself to it from time, to time avoiding the authoritarian pat@. EKery institution or political party that functions under the Constitution must accept it; otherwise it has no place under the Constitution.
Now, what are the fundamental rights ? They are embodied in Part III of the Constitution and they may be classified thus : (i) right to equality, (ii) right to freedom, (iii)right against exploitation, (iv) right to freedom of religion, (v) cultural and educational rights, (vi) right to property, and (vii) right to constitutional remedies.
They are the rights of the people preserved by our Constitution.
"Fundamental rights" are the modern name for what have been traditionally known as "natural rights".
As one author puts: "they are moral rights which every human being everywhere at all times ought to have sim y because of the fact that in contradistinction with ot moral.
" They are the primordial ment of human personality.
man to chalk out his own life in is rational and ry for the developrights which enable a he likes best.
Our Constitution, in addition to the well known fundamental rights, also included the rights of the minorities, untouchables and other backward communities, in such rights.
After having declared the fundamental rights, our Constitution says that all laws in force in the territory of India immediately before the commencement of the Constitution, insofar as they are inconsistent with the said rights, are, to the extent of such inconsistency, void.
The Constitution also enjoins the State not to make any law which takes away or abridges the said rights and declares such laws, to the extent of such inconsistency, to be void.
As we have stated earlier, the only limitation c)n the freedom enshrined in article 19 of the Constitution is that imposed by a valid law rating as a reasonable restriction in the interests of the public.
It will, therefore, be seen that fundamental rights are given transcendental position under our Constitution and are kept beyond the reach of Parliament.
At the same time Parts 1111 and V constituted an integrated scheme forming a self contained code.
The scheme is made so elastic that all the Directive ' Principles of State Policy can reasonably be enforced 'without taking up.
Cl/67 5 790 away or abridging the fundamental rights.
While recognizing the immutability of fundamental rights, subject to social control, the Constitutional itself provides for the suspension or the modification of fundamental rights under specific circumstances, for instance, article 33 empowers Parliament to modify the rights conferred by Part III in their application to the members of the armed forces, article 34 enables it to impose restrictions on the rights conferred by the said parts while martial law is in force in an area, article 35 confers the power on it to make laws with respect to any of the matters which under clause (3) of article 16, Clause (3) of article 32, article 33 and article 34 may be provided for by law.
The non obstante clause with which the last article opens makes it clear that all the other provisions of the Constitution are subject to this provision.
Article 32 makes the right to move the Supreme Court, by appropriate proceedings for the enforcement of the rights conferred by the said Parts a guaranteed right.
Even during grave emergencies article 358 only suspends the provisions of article 19; and article 359 enables the President by order to declare the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in that order to be suspended; that is to say, even during emergency, only article 19 is suspended temporarily and all other rights are untouched except those specifically suspended by the President.
In the Book "Indian Constitution Corerstone of a Nation" by Granville Austin, the scope origin and the object of funda mental rights have been graphically stated.
Therein the learned author says : ". . the core of the commitment to the social revolution lies in Parts III and IV, in the Fundamental Rights and fit the Directive Principles of State Policy.
These are the conscience of the Constitution.
" Adverting to the necessity for incorporating fundamental rights in a Constitution, the learned author says That a declaration of rights had assumed such importance was not surprising; India was a land of communities, of minorities, racial, religious, linguistic, social and caste.
For India to become a state these minorities had to agree to be governed both at the centre and in the provinces by fellow Indian members, perhaps, of another minority and not by a mediatory third power, the British.
On both psychological and political, rounds.
, therefore , the demand for written right rights would provide tangible safeguards, against oppression proved overwhelming.
791 Motilal Nehru, who presided over the Committee called for by the Madras Congress resolution, in May, 1928 observed in his report : "It is obvious that our first care should be to have our Fundamental Rights guaranteed in a manner which will not permit their withdrawal under any circumstances .
Another reason why great importance attached to a Declaration of Rights is the unfortunate existence of communal differences in the country.
Certain safeguards are necessary to create and establish a sense of security among those who look upon each other with distrust and suspicion.
We could dot, better secure the full enjoyment of religious and communal rights to all communities than by including them among the basic principles of the Constitution." Pandit Jawaharlal Nehru, on April 30, 1947 in proposing for the adoption of the Interim Report on Fundamental Rights, said thus : "A fundamental right should be looked upon, not from the point of view of any particular difficulty of the moment, but as something that you want to make permanent in the Constitution.
The other matter should be looked upon however important it might be not from this permanent and fundamental point of view, but from the more temporary point of view." Pandit Jawaharlal Nehru, who was Prime Minister at that time and.
who must have had an effective voice in the framing of the Constitution, made this distinction between fundamental rights and other provisions of the Constitution, namely, the former were permanent and the latter were amendable.
On September 18, 1949 Dr. Ambedkar in speaking on the amendment proposed by Mr. Kamath to article 304 of the Draft Constitution corresponding to the present article 368, namely, "Any provision of this Constitution may be amended, whether by way of variation, addition or repeal, in the manner provided in this article", said thus "Now, what is it we do ? We divide the articles of the Constitution under three categories.
The first category is the one which consists of articles which can be amended by Parliament by a bare majority.
The second set of articles are articles which require two thirds majority.
If the future Parliament wishes to amend any particular article which is not mentioned in Part III or article 304, all that is necessary for them is to have two thirds majority.
Then they can amend it.
" 792 Therefore, in Dr. Ambedkar 's view the fundamental rights were so important that they could not be amended in the manner provided by article 304 of the Draft Constitution, which corresponds to the present article 368.
We have referred to the speeches of Pandit Jawaharlal Nehru and Dr. Ambedkar not with a view to interpret the provisions of article 368, which we propose to do on its own terms, but only to notice the transcendental character given to the fundamental rights by two of the important architects of the Constitution.
This Court also noticed the paramountcy of the fundamental rights in many decisions.
In A. K. Gopalan vs State of Mad ras(1) they are described as "paramount ', in State of Madras vs Smt.
Champakam Dorairajan(2) as "sacrosanct", in Pandit M. section M. Sharma vs Shri Sri Krishna Sinha(s) as "rights reserved by the people ', in Smt.
Vijam Bai vs State of Uttar Pradesh(1) as "inalienable and inviolable",and in other cases as "transcendental".
The minorities regarded them as the bedrock of their political existence and the majority considered them as a guarantee for their way of life.
This, however, does not mean that the problem is one of mere dialectics.
The Constitution has given by its scheme a place of permanence to the fundamental freedoms.
In giving to themselves the Constitution, the people have reserved the fundamental freedoms to themselves.
Article 13 merely incorporates that reservation.
That Article is however not the source of the protection of fundamental rights but the expression of the reservation.
The importance attached to the fundamental freedoms is so transcendental that a bill enacted by a unanimous vote of all the members of both the Houses is ineffective to dero gate from its guaranteed exercise.
It is not what the Parliament regards at a given moment as conducive to the public benefit, but what Part III declares protected, which determines the ambit of the freedom.
The incapacity of the Parliament therefore in exercise of its amending power to modify, restrict or impair fundamental freedoms in Part III arises from the scheme of the Constitution and the nature of the freedoms.
Briefly stated, the, Constitution declares certain rights as fundamental laws infringing the said rights of social control infringing the said power on Parliament and the them in specified circumstances; if the decisions in San Prasad 's case(1) and Sajjan Singh 's case(1) laid down the correct law, it enables the same Parliament to abrogate them with one stroke, provided the party in power singly or in combination with other parties commands the neces (1) ; 198.
(3) [1959] Supp. 1 S.C.R. 806.
(5) [1952] S.C.P. 89,105.
(2) ; (4) [1963] 1 S.C.R. 778.
(6) ; 793 sary majority.
While articles of less significance would require consent of the majority of the States, fundamental rights can.
be dropped without such consent.
While a single fundamental right cannot be abridged or taken away by the entire Parliament unanimously voting to that effect, a two thirds ' majority can do away with all the fundamental rights.
The entire super structure built with precision and high ideals may crumble at one false step.
Such a conclusion would attribute unreasonableness to the makers of the Constitution, for, in that event they would be speaking in two voices.
Such an intention cannot be attributed to the makers of the Constitution unless the provisions of the Constitution compel us to do so.
With this background let us proceed to consider the provisions of article 368, vis a vis article 13(2) of the Constitution.
The first question is whether amendment of the Constitution under article 368 is "law" within the meaning of article 13(2).
The marginal note to article 368 describes that article as one prescribing the procedure for amendment.
The article in terms only prescribes various procedural steps in the matter of amendment: it shall be initiated by the introduction of a bill in either House of Parliament; it shall be passed by the prescribed majority in both the Houses; it shall then be presented to the President for his assent; and upon such assent the Constitution shall stand amended.
The article assumes the power to amend found else and says that it shall be exercised in the manner laid down therein.
The argument that the completion of the procedural AM culminates in the exercise of the power to amend may be subtle but does not carry conviction.
If that was the intention of the provisions, nothing prevented the makers of the Constitution from stating that the Constitution may be amended in the manner suggested.
Indeed, whenever the Constitution sought to confer a special power to amend on any authority it expressly said so : (See articles 4 and 392).
The alternative contention that the said power shall be implied either from article 368 or from the nature of the articles sought to be amended cannot be accepted, for the simple reason that the doctrine of necessary implication cannot be invoked if there is an express sion or unless but for such implication the article will no necessity to imply any plenary power to make any Constitution subject to the Uninfluenced by any foreign doctrines let us look at the provisions of our Constitution.
Under article 245, "subject to the provisions of the Constitution, Parliament may make laws for the whole or any part of the territory of India. .
Article 246 demarcates the matters in respect of which Parliament and State 794 Legislatures may make laws.
In the field reserved for Parliament there is Entry 97 which empowers it to make laws in respect of " any other matter not enumerated in Lists II and III including any tax not mentioned in either of those lists.
" Article 248 expressly states that Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List ,or State List.
It is, therefore, clear that the residuary power of legislation is vested in Parliament.
Subject to the argument based upon the alleged nature of the amending power as understood by jurists in other countries, which we shal consider at a later stage, it cannot be contended, and indeed, it was not contended, that the Constituent Assembly, if it were so minded, could not have conferred an express legislative power on Parliament to amend the Constitution by ordinary legislative process.
Articles 4 and 169, and para 7 of the 5th Schedule and para 21 of the 6th Schedule have expressly conferred such power.
There is, therefore, no inherent Inconsistency between legislative process and the amending one.
Whether in the field of a constitutional law or statutory law amendment can be brought about only by law.
The residuary power of Parliament, unles there is anything contrary in the ,Constitution, certainly takes in the power to amend the Constitution.
It is said that two Articles 'indicate the contrary intention.
As article 245, the argument proceeds, is subject to the provisions of the Constitution, every law of amendment will necessarily be inconsistent with the articles sought to be amended. 'Ibis is an argument in a circle.
Can it be said reasonably that a law amending an article is inconsistent with the article amended ? If an article of the Constitution expressly says that it cannot be amended, a law cannot be made amending it, as the power of Parliament to make a law is subject to the said Article.
It may well be that in a given case such a limitation may also necessarily be implied.
The limitation in article 245 is in respect of the power to make a law and not of the content of the law made Within the scope of its power.
The second criticism is based upon article 39 of the Constitution.
That provision confers power on the President to remove difficulties; in the circumstances mentioned in that provision, he can by order direct that the Constitution shall during such period as may be specified in that order have effect subject to such adaptations, whether by way of modification, addition ,or omission, as he may deem to be necessary or expedient.
The argument is that the President 's power, though confined to a temporqry period,is co extensive with legislative power and if the power to amend is a legislative power it would have to be held that the President can amend the Constitution in terms of article 368.
Apart from the limited scope of article 392, which is intended only for the purpose of removing difficulties and for bringing about a smooth transition, an order made by the Presi 795 dent cannot attract article 368, as the amendment contemplated by that provision can be initiated only by the introduction of a bill in the Parliament.
There is no force in either of the two criticisms.
Further, there is, internal evidence in the Constitution itself which indicates that amendment to the Constitution is a "law" within the meaning of article 245.
Now, what is "law" under the Constitution ? It is not denied that in its comprehensive sense it includes constitutional law and the law amending the Constitution is constitutional law.
But article 13(2) for the purpose of that Article gives an inclusive definition.
It does not exclude Constitutional law.
It prima facie,takes in constitutional law.
Article 368 itself gives the necessary clue to the problem.
The amendment can be initiated by.
the introduction of a bill; it shall be passed by the two Houses; it shall ' receive the assent of the President.
These are well known procedural steps in the process of law making : Indeed this Court in Sankari Prasads case(1) brought out this idea in clear terms.
It said "in the first place, it is provided that the amendment must be initiated by the introduction of a "bill in either House of Parliament ' a familiar feature of Parliament procedure (of Article 107(1) which says "A bill may originate in either House of Parliament"). 'Then, the bill must be "Passed in each House," just what Parliament does when it is called upon to exercise its normal legisrative function Article 107(2)1; and finally, the bull thus passed must be "president to the President" for his "assent", again a parliamentary process through which every bill must pass before it can reach the statute book, (Article 1 1 1 ).
We thus find that each of the component units of Parliament is to play its allotted part in bringing about an amendment to the Constitution.
We have already seen that Parliament effects amendments of the first class mentioned above by going through the same three fold procedure but with a simple majority.
The fact that a different majority in the same body is required for effecting the second and third categories of 1 amendments make the amending agency a different body.
" In the same decision it is pointed out that article 368 is not a complete code in respect of the procedure.
This Court said "There are gaps in the procedure as to how and after what notice a bill is to be introduced, how it is to be passed by each House and how the President 's assent is to be obtained.
Having provided for the Constitution of a Parliament and prescribed a certain procedure for the conduct of its ordinary legislative business to be supplemented by rules made by each House (Article 118), the makers of the Constitution must be taken to have intended Parliament to follow that procedure, so far as they may be applicable consistently with the express provision of article 368, when they have entrusted to it the power of =ending the Con (1) ( 1 952) S.C. R. 89.
796 stitution.
" The House of the People made rules providing procedure for amendments, the same as for other Bills with the addition of certain special provisions viz., Rules 155, 156, 157 and 158.
If amendment is intended to be something other than law, the constitutional insistence on the said legislative process is unnecessary.
In short, amendment cannot be made otherwise than by following the legislative process.
The fact that there are other conditions, such as, a larger majority and in the case of articles mentioned in the proviso a ratification by Legislatures is provided, does not make the amendment anytheless a law.
The imposition of further conditions is only a safeguard against hasty action or a protection to the States, but does not change the Legislative character of the amendment.
This conclusion is reinforced by the other articles of the Constitution.
Article 3 enables Parliament by law to form now States and alter areas, boundaries or the names of existing States.
imposed two, further conditions, of the President, and (ii) in therein, the views expressed by the Legislatures.
Notwithstanding the said conditions it cannot be suggested that the expression "law" under the said Article is not one made by the Legislative process.
Under article 4, such a law can contain provisions for amendment of Schedules I and IV indicating thereby that amendments are only made by Legislative process.
What is more, cl.
(2) thereof introduces a fiction to the affect that such a law shall not be deemed to be an amendment to the Constitution.
This shows that the amendment is law and that but for the fiction it would be an amendment within the meaning of article 368.
Article 169 which empowers Parliament by law to abolish or create Legislative Councils in States, para 7 of the 5th Schedule and para 21 of the 6th Schedule which enable Parliament by law to amend the said Schedules, also bring out the two ideas that the amendment is law made by legislative process and that but for the fiction introduced it would attract Article 368.
That apart amendments under the said provisions can be made by the Union Parliament by simple majority.
That an amendment is made only by legislative process with or without conditions will be clear if two decisions of the Privy Council are considered in juxta position.
They are McCawley vs The King(1) and The Bribery Commissioner vs Pedrick Rana singhe(2).
The facts in McCawley vs The King(1) were these: In 1859 Queensland had been granted a Constitution in the terms of an Order in Council made on June 6 of that year under powers derived by Her Majesty from the Imperial Statute, 18 & 19 Vict.
(1) (2) 797 c. 54.
The Order in Council had set up a legislature for the territory, consisting of the Queen, a Legislative Council and a. Legislative Assembly, and the law making power was vested in Her Majesty acting with the advice and consent of the Council and Assembly.
Any laws could be made for the "peace, welfare and good government of the Colony".
The said legislature of Queensland in the year 1867 passed the Constitution Act of that year.
Under that Act power was given to the said legislature to make laws for "peace, welfare and good Government of the Colony in all cases whatsoever".
But, under section 9 thereof a two thirds majority of the Council and of the Assembly %,as required as a condition precedent to the validity of legislation altering the constitution,of the Council.
The Legislature, there fore, had, except in the case covered by section 9 of the Act, an unrestricted power to make laws.
The Legislature passed a law which conflicted with one of the existing terms of the Constitution Act.
Lord Birkenhead, L.C., upheld the law, as the Constitution Act conferred an absolute power upon the legislature to pass any law by majority even though it, in substance, amended the terms of the Constitution Act.
In The Bribery Commissioner vs Pedrick Ranasinghe(1), the facts are these : By section 29 of the Ceylon (Constitution) Order in Council, 1946, Parliament shall have power to make laws for the, "peace.
order and good government" of the Island and in the exercise of its power under the said section it may amend or repeal any of the provisions of the Order in its application to the Island.
The proviso to that section says that no Bill for the amendment or repeal of any of the provisions of the Order shall be presented for the Royal assent unless it has endorsed on it a certificate under the hand of the Speaker that the number of votes cast in favour thereof in the House of Representatives amounted to not less than two thirds of the whole number of members of the House.
Under section 55 of the said Order the appointment of Judicial Officers was vested in the Judicial Service Com mission.
But the Parliament under section 41 of the Bribery Amendment Act, 1958, provided for the appointment of the personnel of the Bribery Tribunals by the Governor General on the advice of the Minister of Justice.
The said Amendment Act was in conflict with the said section 55 of the Order and it was passed without complying with the terms of the proviso to section 29 of the Order.
The Privy Council held that the Amendment Act was void.
Lord Pearce, after considering McCawley 's case(2) made the following observations, at p. 1310 : ". . a legislature has no power to ignore, the conditions of law making that are imposed by the (1) ; (2) 1. 798 instrument which itself regulates its power to make law.
This restriction exists independently of the , question whether the legislature is sovereign, as is the legislature of Ceylon, or whether the Constitution is "uncontrolled", as the Board held the Constitution of Queensland to be.
Such a Constitution can, indeed, be altered or amended by the legislature, if the regulating instrument so provides and if the terms of those provisions are complied with. .
It will be seen from the said judgments that an amendment of the Constitution is made only by legislative process with ordinary majority or with special majority, as the case may be.
There.fore, amendments either under article 368 or under other Articles ,axe made only by Parliament by following the legislative process adopted by it ' n making other law,.
In the premises, an amendment "Of the Constitution can be nothing but "law".
A comparative study of other Constitutions indicates that no particular pattern is followed.
AR the Constitutions confer an ,express power to amend, most of them provide for legislative procedure with special majority, referendum, convention, etc., and a few with simple majority.
Indeed, Parliament of England, which is a supreme body, can amend the constitution like any other :statute.
As none of the Constitutions contains provisions similar to article 368 and article 13(2), neither the said Constitutions nor the decisions given by courts thereon would be of any assistance in construing the scope of article 368 of our Constitution.
A brief survey of the nature of the amending process adopted by various constitutions will bring out the futility of any attempt to draw inspiration from the said opinions or decisions on the said constitutions.
The nature of the amending power in different constitutions generally depends on the nature of the polity created by the constitution, namely, whether it is federal or unitary constitution or on the fact whether it is a written or an unwritten constitution or on the circumstances whether it is a rigid or a flexible constitution.
Particularly the difference can be traced to the "spirit and genius of the nation in which a particular constitution has its birth".
The following articles of the 'Constitution of the different countries are brought to our notice by one or other of the counsel that appeared before us.
article 5 of the Constitution of the United States of America, articles 125 and 128 of the Commonwealth of Australia Constitution Act, article 92 (1) of the British North American Act, section 152 of the South African Act, article 217 of the Constitution of, the United States of Brazil, Section 46 of the Constitution of Ireland, 1937, articles 207, 208 and 209 of the Constitution of the Union of Burma, article 88 ,of the Constitution of the Kingdom of Denmark Act, article 90 of 799 the Constitution of the French Republic, 1954, article 135 of the United States of Mexico, article 96 of the Constitution of Japan, article 112 of the Constitution of Norway, article 85 of the Constitution of the Kingdom of Sweden, articles 118, 119, 120, 121, 122 and 123 of the Constitution of the Swiss Federation, articles 140, 141 and 142 of the Constitution of Venezuela, and article 146 of the Constitution of the Union of Soviet Socialist Republics, 1936 and section 29(4) of Ceylon Constitution Order in Council, 1946.
Broadly speaking amendments can be made by four methods (i) by ordinary legislative process with or without restrictions, (ii) by the people through, referendum, (iii) by majority of all the units of a federal State; and (iv) by a special convention.
The first method can be in four different ways, namely, (i) by the ordinary course of legislation by absolute majority or by special majority, (See Section 92 (1 ) of the British North America Act, sub section 152 South African Apt, where under except sections 35, 137 and 152, other provisions could be amended by ordinary legislative process by absolute majority.
Many constitutions provide for special majorities.); (ii) by a fixed quorum of members for the consideration of the proposed amendment and a special majority for its passage; (see the defunct Constitution of Rumania), (iii) by dissolution and general election on a particular issue; (see the Constitutions of Belgium, Holland, Denmark and Norway), and (iv) by a majority of two Houses of Parliament in joint session as in the Constitution of the South Africa.
The second method demands a popular vote, referendum , or plebiscite as in Switzerland, Australia, Ireland, Italy, France and Denmark.
The third method is by an agreement in some form or other of either of the majority or of all the federating units as in Switzerland, Australia and the United States of America.
The fourth method is generally by creation of a special body ad hoc for the purpose of constitution revision as in Latin America.
Lastly, some constitutions impose express limitation on the power to amend.
(See article 5 of the United States Constitution and the Constitution of the Fourth French Republic).
A more elaborate discussion of this topic may be found in the American political Constitution by Strong.
It will, therefore, be seen that the power to amend and the procedure to amend radically differ from State to State; it is left to the constitution makers to prescribe the scope of the power and the method of amendment having regard to the requirements of the particular State.
There is no article in any of the constitutions referred to us similar to article 13(2) of our Constitution.
India adopted a different system altogether: it empowered the Parliament to amend the Constitution by the legislative process subject to fundamental rights.
The Indian 1 Constitution has made the amending process comparatively flexible, but it is made subject to fundamental rights.
800 Now let us consider the argument that the power to amend is a sovereign power, that the said power is supreme to the legislative power, that it does not permit any implied limitations and that amendments made in exercise of that power involve political questions and that, therefore, they are outside judicial review, This wide proposition is sought to be supported on the basis of opinions of jurists and judicial decisions.
Long extracts have been read to us from the book "The Amending of the Federal Constitution (1942)" by Lester Bernhardt Orfield, and particular reference was made to the following passages : "At the point it may be well to note that when the Congress is engaged in the amending process it is not legislating.
It is exercising a peculiar power bestowed upon it by Article Five.
This Article for the most part ,controls the process; and other provisions of the Constitution, such as those relating to the passage of legislation, having but little bearing.
" Adverting to the Bill of Rights, the learned author remarks that they may be repealed just as any other amendment and that they are no more sacred from a legal standpoint than any other part of the Constitution.
Dealing with the doctrine of implied limitations, he says that it is clearly untenable.
Posing the question 'Is other a law about the amending power of the Constitution ?", he answers, "there is none".
He would even go to the extent of saying that the sovereignty, if it can be said to exist at all, is located in the amending body.
The author is certainly a strong advocate of the supremacy of the amending power and an opponent of the doctrine of implied limitations.
His opinion is based upon the terms of article 5 of the Constitution of the United States of America and his interpretation of the decisions of the Supreme Court of America.
Even such an extreme exponent of the doctrine does not say that a particular constitution cannot expressly impore restrictions on the power to amend or that a court cannot reconcile the articles couched in unlimited phraseology.
Indeed article 5 of the American Constitution imposes express limitations on the amending power.
Some passages from the book "Political Science and Government" by James Wilford Garner are cited.
Garner points out : "An unamendable constitution, said Mulford, is the &&worst tyranny of time, or rather the very tyranny of time" But he also notices "The provision for amendment should be neither so rigid as to make needed changes practically impossible nor so flexible as to encourage frequent and 801 unnecessary changes and thereby lower the authority of the Constitution.
" Munro in his book "The Government of the United States", 5th Edition, uses strong words when he says ". . it is impossible to conceive of an unamendable constitution as anything but a contradiction in terms.
" The learned author says that such a constitution would constitute "government by the graveyards." Hugh Evander Wills in his book "Constitutional Law of the United States" avers that the doctrine of amendability of the Constitution is grounded in the doctrine of the sovereignty of the people and that it has no such implied limitations as that an amendment shall not contain a new grant of power or change the dual form of government or change the protection of the Bill of Rights, or make any other change in the Constitution.
Herman Finer in his book "The Theory and Practice of Modem Government" defines "constitution" as its process of amendment, for, in his view, to amend is to deconstitute and reconstitute.
The learned author concludes that the amending clause is so fundamental to a constitution that he is tempted to call it the constitution itself.
But the learned author recognizes that difficulty in amendment certainly products circumstances and makes impossible the surreptitious abrogation of rights guaranteed in the constitution.
William section Livingston in "Federalism and Constitutional Change" says : "The formal procedure of amendment is of greater importance than the informal processes, because it constitutes a higher authority to which appeal lies on any question that may arise.
" But there are equally eminent authors who express a different view.
In "American Jurisprudence", 2nd Edition, Vol.
16, it is stated that a statute and a constitution though of unequal dignity are both laws.
Another calls the constitution of a State as one of the laws of the State.
Cooley in his book on "Constitutional Law" opines that changes in the fundamental laws of the State must be indicated by the people themselves.
He further implies limitations to the amending power from the belief in the constitution itself, such as, the republican form of Government cannot be abolished as it would be revolutionary in ifs characters.
In the same book it is further said that the power to amend the constitution by legislative action does not confer the power to break it any more than it confers the power to legislate on any other subject contrary to the prohibitions.
C. F. Strong in his book "Modem Poliical Constitutions", 1963 edition, does not accept the theory of absolute sovereignty of the amending power which does not brook any limitations, for he says.
802 "In short, it attempts to arrange for the recreation of a constituent assembly whenever such matters are in future to be considered, even though that assembly be nothing more than the ordinary legislature acting under certain restrictions.
At the same time, there may be some elements of the constitution which the constituent assembly wants to remain unalterable by the action of any authority whatsoever.
These elements are to be distinguished from the rest, and generally come under the heading of fundamental law.
Thus, for example, the American Constitution, the oldest of the existing Constitutions, asserts that by no process of amendment shall any State, without its own consent, be deprived of its equal suffrage in the Senate, , while among the Constitutions more recently promulgated, those of the Republics of; France and Italy, each containing a clause stating that the republican form of government cannot be the subject of an amending proposals" it is not necessary to multiply citations from text books.
A catena of American decisions have been cited before us in support of the contention that the unending power is a supreme power or that it involves political issues which are not justiciable.
It would be futile to consider them.
at length, for after going through them carefully we find that there are no considered judgments of the American Courts, which would have a persuasive effect in that regard.
In the Constitution of the United States of America, prepared by Edwards section Corwin, Legislative Reference Service, Library of Congress, (1953 edn.), the following summary under the heading "Judicial Review under Article V" is given : "Prior to 1939, the Supreme Court had taken cognizance of a number of diverse objections to the validity of specific amendments.
Apart from holding that official notice of ratification by the several States was con clusive upon the Courts, it had treated these questions as justiciable, although it had uniformly rejected them on the merits.
In that year, however, the whole subject was thrown into confusion by the inconclusive decision in Coleman vs Miller.
This case came up on a writ of certiorari to the Supreme Court of Kansas to review the denial of a writ of mandamus to compel the Secretary of the Kansas Senate to erase an endorsement on a resolution ratifying the child labour amendment to the Constitution to re effect that it had been adopted by the Kansas Senate.
The attempted ratification was 803 assailed on three grounds : (1) that the amendment had been previously rejected by the State Legislature; (2) that it was no longer open to ratification because an unreasonable period of time thirteen years, had elapsed since its submission to the States, and (3) that the lieutenant governor had no right to cast the deciding vote in the Senate in favour of ratification.
Four opinions were written in the Supreme Court, no one of which commanded the support of more than four mem bers of the Court.
The majority ruled that the plain tiffs, members of the Kansas State Senate, had a sufficient interest in the controversy to give the federal courts jurisdiction to review the case.
Without agreement as to the grounds for their decision, a different majority affirmed the judgment of the Kansas court denying the relief sought.
Four members who concur red in the result had voted to dismiss the writ on the ground that the amending process "is political" in its.
entirety, from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control or interference at any point.
" whether the contention that the lieutenant governor should have been permitted to cast the deciding vote in favour of ratification presented a justiciable controversy was left undecided, the court being equally divided on the point.
In an opinion reported as "the opinion of the Court" ' but in which it appears that only three Justices concurred, Chief Justice Hughes declared that the writ of ' mandamus was properly denied because the question as to the effect of the previous rejection of the amendment and the lapse of time since it was submitted to the States were political questions which should be left to Congress.
On the same day, the Court dismissed a. writ of certiorari to review a decision 'of the Kentucky Court of Appeals declaring the action of the Kentucky General Assembly purporting to ratifying the child labour amendment illegal and void.
Inasmuch as the governor had forwarded the certified copy of the resolution to the Secretary of State before being served with a copy of the restraining order issued by the State Court, the Supreme Court found that there 'was no longer a controversy susceptible of judicial determination.
" This passage, in our view, correctly summarises the American law on the subject.
It will be clear therefrom that prior to 1939 the Supreme Court of America had treated the objections to the validity of specific amendments as justiciable and that only in 1939 it rejected them in an inconclusive judgment without 804 discussion.
In this state of affairs we cannot usefully draw much from the judicial wisdom of the Judges of the Supreme Court of America.
One need not cavil at the description of an amending power as sovereign power, for it is sovereign only within the scope of the power conferred by a particular constitution.
All the authors also agree, that a particular constitution can expressly limit the power of amendment, both substantive and procedural.
The only conflict lies in the fact that some authors do not pen nit implied limitations when the power of amendment is expressed in general words.
But others countenance such limitations by construction or otherwise.
But none of the authors goes to the extent of saying, which is the problem before us, that when there are conflicting articles couched in widest terms, the court has no jurisdiction to construe and harmonize them.
If some of the authors meant to say that in our view, they did not we cannot agree with them, for, in that event this Court would not be discharging its duty.
Nor can we appreciate the arguments repeated before us by learned counsel for the respondents that the amending process involves political questions which are, outside the scope of judicial review.
When a matter comes before the Court, its jurisdiction does not depend upon the nature of the question raised but on die, question whether the said matter is expressly or by necesssary implication excluded from its jurisdiction.
Secondly, it is not possible to define what is a political question and what is not.
The character of a question depends upon the circumstances and the nature of a political society.
To put if differently, the court does not decide any political question at all in the ordinary sense of the. term, but only ascertains whether Parliament is acting within the scope of the amending power.
It may be that Parliament seeks to amend the Constitution for political reasons, but the Court in denying that power will not be deciding on political questions, but will only be holding that Parliament has no power to amend particular articles of the Constitution for any purpose whatsoever, be it political or otherwise.
We, therefore, hold that there is nothing in the nature of the amending power which enables Parliament to override all the express or implied limi tations imposed on that power.
As we have pointed out earlier, our Constitution adopted a novel method in the sense that Parliament makes the amendment by legislative process subject to certain restrictions and,that the amendment so made being law" is.subject to article 13(2).
The next argument is based upon the expression "amendment" in article 368 of the Constitution and if is contended that the said 805 expression has .a
Positive and a negative content and that in exercise of the power amendment parliament cannot destroy the structure of the Constitution, but it can only modify the provisions thereof within the framework of the original instrument for its better effectuation.
If the fundamentals would be amenable to the ordinary process of amendment with a special majority, the argument proceeds, the institutions of the President can be abolished, the parliamentary executive can be removed, the fundamental rights can be abrogated, the concept of federalism ' can be obliterated and in short the sovereign democratic republic can be converted into a totalitarian system of government.
There is considerable force in this argument.
Learned and lengthy arguments are advanced to sustain it or to reject it.
But we are relieved of the necessity to express our opinion on this all important question as, so far as the fundamental rights are concerned, the question raised can be answered on a narrower basis.
This question may arise for consideration only if Parliament seeks to destroy the structure of the Constitution embodied in the provisions other than in Part III of the Constitution.
We do not, therefore, propose to express our opinion in that regard.
In the view we have taken on the scope of article 368 vis a vis the fundamental rights, it is also unnecessary to express our opinion on the question whether the amendment of the fundamental rights is covered by the proviso to article 368.
The result is that the Constitution (Seventeenth Amendment) Act, 1964, inasmuch as it takes away or abridges the funda mental rights is void under article 13(2) of the Constitution.
The next question is whether our decision should be given retrospective operation.
During the period between 1950 and 1967 i.e 17 years as many as 20 amendments were made in our Constitution.
But in the context of the present petitions it would be enough if we notice the amendments affecting fundamental right to property.
The Constitution came into force on January 26, 1950.
The Constitution (First Amendment) Act, 1951, amended articles 15 and 19, and articles 31 A and 31 B were inserted with retrospective effect.
The object of the amendment was said to be to validate the acquisition of zamindaries or the abolition of permanent settlement without interference from courts.
The occasion for the amendment was that the High Court of Patna in Kameshwar Singh v, State of Bihar(1) held that the Bihar Land Reforms Act (30 of 1950) passed by the State of Bihar was unconstitutional, while the High Courts of Allahabad and Nagpur upheld the validity of corresponding legislations in Uttar Pradesh and Madhya Pradesh respectively.
(1) A. I. R. 1951 Patna 91.
C.T.167 6 806 The amendment was made when the appeals from those decisions were pending in the Supreme Court.
In Sankari Prasad 's case(1) the constitutionality of the said amendment was questioned but the amendment was upheld.
It may be noticed that the said amendment was not made on the basis of the power to amend fundamental rights recognized by this Court but only in view of the conflicting decisions of High Courts and without waiting for the final decision from this Court.
article 31 A was again amended by the Constitution (Fourth Amendment) Act, 1955.
Under that amendment cl.
(2) of article 31 was amended and cl.
(2 A) was inserted therein.
While in the original article 31 A the general expression "any provisions of his Part" was found, in the amended article the scope was restricted only.to the violation of articles 14, 19 and 31 and 4 other clauses were included, namely, clauses providing for (a) taking over the management of any property by the State for a limited period; (b) amalgamation of two or more corporations; (c) extinguishment or modification of rights of person; interested in corporations; and (d) extinguishment or modification of rights accruing under any agreement, lease or licence relating to minerals, and the definition of "estate" was enlarged in order to include the interests of raiyats and under raiyats.
The expressed object of the amendment was to carry out important social welfare legislations on the desired lines, to improve the national economy of the State and to avoid serious difficulties raised by courts in that regard.
Article 31A has further been amended by the Constitution (Fourth Amendment) Act, 1955.
By the said amendment in the Ninth Schedule to the Constitution entries 14 to 20 were added.
The main objects of this amending Act was to distinguish the power of compulsory acquisition or requisitioning of private property and the deprivation of property and to extend the scope of article 31 A to cover different categories of social welfare legislations and to enable monopolies in particular trade or business to be created in favour of the State.
Amended article 31(2)makes the adequacy of compensation not justiciable.
It may be said that the Constitution (Fourth Amendment) Act, 1955 was made by Parliament as this Court recognized the power of Parliament to amend Part III of the Constitution; but it can ' also be said with some plausi bility that, as Parliament had exercised the power even before the.
decision of this Court in Sankari Prasad 's case(1), it would have amended the Constitution even if the said decision was not given by this Court.
The Seventeenth Amendment Act was made on June 20, 1964.
The occasion for this amendment was the decision of this Court in Karimbil Kunhikoman vs State of Kerala(2), which struck down the Kerala Agrarian Relations Act IV of 1961 relating to ryotwari lands.
Under that amendment the definition of the expression "estate" was enlarged so as to take (1) ; , 105 (2) [1962] Supp. 1 S.C.R. 829 807 in any land held under ryotwari settlement and any held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans.
In the Ninth Schedule the amendment included items 21 to 65.
In the objects and reasons it was stated that the definition" 'estate" was not wide enough, that the courts had struck down many land reform Acts and that, therefore, in order to give them protection the amendment was made.
The validity of the Seventeenth Amendment Act was questioned in this Court and was held to be valid in Sajian Singh 's case(1).
From the history of these amendments, two things appear, namely, unconstitutional laws were made and they were protected by the amendment of the Constitution or the amendments were made in order to protect the future laws which would be void but for the amendments.
But the fact remains that this Court held as early as in 1951 that Parliament had power to amend the fundamental rights.
It may, therefore, said that the Constitution (Fourth Amendment) Act, 1955, and the Constitution (Seventeenth Amendment) Act, 1964, were based upon the scope of the power to end recognized by this Court.
Further the Seventeenth Amendment Act was also approved by this Court.
Between 1950 and 1967 the Legislatures of various States made laws bringing about an agrarian revolution in our country zamindaries, inams and other intermediary estates were abolished, vested rights were created in tenants, consolidation of holdings of villages was made, ceilings were fixed and the surplus lands transferred to tenants.
All these were done on the, basis of the correctness of the decisions in Sankari Prasads case(2) and Sajjan Singh 's case(1), namely, that Parliament had the power to amend the fundamental rights and that Acts in regard to estates were outside judicial scrutiny on the ground they infringed the said rights.
The agrarian structure of our country has been revolutionised on the basis of the said laws.
Should we now give retrospectivity to our decision, it would introduce chaos and unsettle the conditions in our country.
Should we hold that because of the said consequences Parliament had power to take away fundamental rights, a time might come when we would gradually and imperceptibly pass under a totalitarian rate.
Learned counsel for the petitioners as well as those for the respondents placed us on the horns of this dilemma, for they have taken extreme positions leamed counsel for the petitioners want us to reach the logical position by holding that all the said laws are void and the learned counsel for the respondents persuade us to hold that Parliament has unlimited power and, if it chooses, it can do away with fundamental rights.
We do not think that (1) ; (2) ; , 808 this Court is so helpless.
As the highest Court in the land we must evolve some reasonable principle to meet this extraordinary situation.
There is an essential distinction between Constitution and statutes.
Comparatively speaking, Constitution is permanent; it is an organic statute; it grows by its own inherent force.
The constitutional concepts are couched in elastic terms.
Courts are expected to and indeed should interpret, its terms without doing violence to the language, to suit the expanding needs of the society.
In this process and in a real sense they make laws.
Though it is not admitted, the said role of this Court is effective and cannot be ignored.
Even in the realm of ordinary statutes, the subtle working of the process is apparent though the approach is more conservative and inhibitive.
In the constitutional field, therefore, to meet the present extraordinary situation that may be caused by our decision, we must evolve some doctrine which has roots in reason and precedents so that the past may be preserved and the future protected.
There are two doctrines familiar to American Jurisprudence, one is described as Blackstonian theory and the other as "prospective over ruling", which may have some relevance to the present enquiry.
Blackstone in his Commentaries, 69 (15th edn., 1809) stated the common law rule that the duty of the Court was "not to pronounce a new rule but to maintain and expound .the old one".
It means the Judge does not make law but only discovers or finds the true law.
The law has always been the same.
If a subsequent decision changes the earlier one, the latter decision does not make law but only discovers the correct principle of law.
The result of this view is that it is necessarily retrospective ,operation.
But Jurists, George F. Canfield, Robert Hill Freeman, John Henry Wigmore and Cardozo, have expounded the doctrine of "prospective over ruling" and suggested it as "a useful judicial .tool".
In the words of Canfield the said expression means ". a court should recognize a duty to an nounce a new and better rule for future transactions whenever the court has reached the conviction that an old rule (as established by the precedents) is unsound even though feeling compelled by stare decisis to apply the old and condemned rule to the instant case and to transactions which had already taken place.
" Cardozo, before he became a Judge of the Supreme Court of the United States of America, when he was the Chief Justice of New York State addressing the Bar Association said thus The rule (the Blackstonian rule) that we are asked to apply is out of tune with the life about us.
It has been made discordant by the forces that generate a 809 living law.
We apply it to this case because the repeal might work hardship to those who have trusted to its existence.
We give notice however that any one trusting to it hereafter will do at his peril.
" The Supreme Court of the United States of America, in the year 1932, after Cardozo became an Associate Justice of that Court in Great Northern Railway vs Sunburst Oil & Ref.
Co.,(1) applied the said doctrine to the facts of that case.
In that case the Montana Court had adhered to its previous construction of the statute in question but had announced that that interpretation would not be followed in the future.
It was contended before the Supreme Court of the United States of America that a decision of a court over ruling earlier decision and not giving its ruling retroactive operation violated the due process clause of the 14th Amendment.
Rejecting that plea, Cardozo said : "This is not a case where a Court in overruling an earlier decision has come to the new ruling of retroactive dealing and thereby has made invalid what was followed in the doing.
Even that may often be done though litigants not infrequently have argued to the contrary .
This is a case where a Court has refused to make its ruling retroactive, and the novel stand is taken that the Constitution of the United States is infringed by the refusal.
We think that the Federal Constitution has no voice upon the subject.
A state in defining the elements of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward.
It may be so that the decision of the highest courts, though later over ruled, was law nonetheless for intermediate transactions .
On the other hand, it may hold to the ancient dogma that the law declared by its Courts had a platonic or ideal existence before the act of declara tion, in which event, the discredited declaration will be viewed as if it had never been and to reconsider declaration as law from the beginning.
The choice for any state maybe determined by the juristic philosophy of the Judges of her Courts, their considerations of law, its origin and nature.
" The opinion of Cardozo tried to harmonize the doctrine of prospective over ruling with that of stare decisis.
In 1940, Hughes, C.J., in Chicot County Drainage District vs Baxter State Bank(2) stated thus (1) ; , 366. ; (2) ; 810 "The law prior to the determination of unconstitutionality is an operative fact and may have consequences which cannot justly be ignored.
The past cannot always be erased by a new judicial declaration.
" In Griffin vs Illionis(1) the Supreme Court of America reaffirmed the doctrine laid down in Sunburst 's case (2).
There, a statute required defendants to Submit bills of exceptions as a pre requisite to an appeal from a conviction; the Act was held unconstitutional in that it provided no means whereby indigent defendants could secure a copy of the record for this purpose.
Frankfurter, J., in that context observed ". in arriving at a new principle, the judicial process is not important to, define its scope and limits.
Adjudication is not a mechanical exercise nor does it compel 'either/or ' determination." In Wolf vs Colorado(3) a majority of the Supreme Court held that in a prosecution in a State Court for a state crime, the 14th Amendment did not forbid the admission of evidence obtained by an unreasonable search and seizure.
But in Mapp.
vs Ohio(4) the Supreme Court reversed that decision and held that all evidence obtained by searches and seizure in violation of the 4th Amendment of the Federal Constitution was, by virtue of the due process clause of the 14th Amendment guaranteeing the right to privacy free from unreasonable State instrusion, inadmissible in a State court.
In Linkletter vs Walker(5) the question arose whether the exclusion of the rule enunciated in Mapp vs Ohio(4) did not apply to State Court convictions which had become final before the date of that judgment.
Mr. Justice Clarke, speaking for the majority observed "We believe that the existence of the Wolf doctrine prior to Mapp is 'an operative ' fact and may have consequences which cannot justly be ignored.
The past cannot always be erased by a new judicial declaration." "Mapp had as its prima purpose the enforcement of the Fourth Amendment through the inclusion of the exclusionary rule within its rights. . .
We cannot say that this purpose would be advanced by making the rule retrospective.
The misconduct of the police prior to Mapp has already occurred and win (1) [1956]351U.S.12,2. (2) (1932) 287 U. section 358,366: ; (3) ; 193L.Ed. 872.
(4) ; 6 L. Ed.
(5) ; 1081.
811 not be corrected by releasing the prisoners involved.
On the other hand, the States relied on Wolf and followed its command.
Final judgments of conviction were entered prior to Mapp.
Again and again the Court refused to reconsider Wolf and gave its implicit approval to hundreds of cases in their application of its rule.
In rejecting the Wolf doctrine as to, the exclusionary rule the purpose was to deter the lawless action of the police add to effectively enforce the Fourth Amendment.
That purpose will not at this late date be served by the wholesale release of the guilty victims." "Finally, there are interests in the, administration of justice and the integrity of the judicial process to consider.
To make the rule of Mapp retrospective would tax the administration of justice to the utmost.
Hearings would have to be held on the excludability of evidence long since destroyed, misplaced or deteriorated.
If it is excluded, the witness available at the time of the original trial will not be available or if located their memory will be dimmed.
To thus legitimate such an extraordinary procedural weapon that has no bearing on guilt would seriously disrupt the administration of justice.
" This case has reaffirmed the doctrine of prospective overruling and has taken a pragmatic approach in refusing to give it retroactivity.
In short, in America the doctrine of prospective overruling is now accepted in all branches of law, including constitutional law.
But the carving of the limits of retrospectivity of the new rule is left to courts to be done, having regard to the requirements of justice.
Even in England the Blackstonian theory was criticized by Bentham and Austin.
In Austin 's Jurisprudence, 4th Ed., at page 65, the learned author says : "What hindered Blackstone was 'the childish fiction ' employed by our judges, that the judiciary or common law is not 'Made by them, but is a miraculous something made, by nobody, existing, I suppose, from eternity, and merely declared from time to time by the Judges." Though English Courts in the past accepted the Blackstonian theory and though the House of Lords strictly adhered to the doctrine of 'precedent ' in the earlier years, both the doctrines were practically given up by the "Practice Statement (Judicial Precedent)" issued by the House of Lords recorded in (1966) 1 W.L.R. 1234.
Lord Gardiner L.C., speaking for the House of Lords made the following observations 812 "Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law.
They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.
In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law." This announcement is not intended to affect the use of precedent elsewhere than in this House.
" It will be seen from this passage that the House of Lords hereafter in appropriate cases may depart from its previous decision when it appears right to do so and in so departing will bear in mind the danger of giving effect to the said decision retroactivity.
We consider that what the House of Lords means by this statement is that in differing from the precedents it will do so only without interefering with the transactions that had taken place on the basis of earlier decisions.
This decision, to a large extent, modifies the Blackstonian theory and accepts, though not expressly but by necessary implication the doctrine of "prospective overruling.
" Let us now consider some of the objections to this doctrine.
The objections are: (1) the doctrine involved legislation by courts; (2) it would not encourage parties to prefer appeals as they would not get any benefit therefrom; (3) the declaration for the future would only be obiter, (4) it is not a desirable change; and (5) the doctrine of retroactivity serves as a brake on court which otherwise might be tempted to be so fascile in overruling.
But in our view, these objections are not insurmountable.
If a court can over rule its earlier decision there cannot be any dis pute now that the court can do so there cannot be any valid reason why it should not restrict its ruling to the future and not to the past.
Even if the party filing an appeal may not be benefited by it, in similar appeals which he may file after the change in the law he will have the benefit.
The decision cannot be obiter for what the court in effect does is to declare the law but on the basis of another doctrine restricts its scope.
Stability in law does not mean that injustice shall be perpetuated.
An illuminating article on the subject is found in Pennsylvania Law Review, [Vol.
I 10 p. 650].
813 It is a modem doctrine suitable for a fast moving society.
It does not do away with the doctrine of stare decisis, but confines it to past transactions.
It is true that in one sense the court only declares the law, either customary or statutory or personal law.
While in strict theory it may be said that the doctrine involves making of law, what the court really does is to declare the law but refuses to give retroactivity to it.
It is really a pragmatic solution reconciling the two conflicting doctrines, namely, that a court finds law and that it does make law.
It finds law but restricts its operation to the future.
It enables the court to bring about a smooth transition by correcting its errors without disturbing the impact of those errors on the past transactions.
It is left to the discretion of the court to prescribe the limits of the retroactivity and thereby it enables it to would the relief to meet the ends of justice.
In India there is no statutory prohibition against the court refusing to give retroactivity to the law declared by it.
Indeed,.
the doctrine of res judicata precludes any scope for retroactivity in respect of a subject matter that has been finally decided between the parties.
Further, Indian court by interpretation reject retroactivity.
to statutory provisions though couched in general terms on the ground that they affect vested rights.
The present case only attempts a further extension of the said rule against retroactivity.
Our Constitution does not expressly or by necessary implica tion speak against the doctrine of prospective over ruling.
Indeed, articles 32, 141 and 142 are couched in such wide and elastic terms as to enable this Court to formulate legal doctrines to meet the ends of justice.
The only limitation thereon is reason, restraint and injustice.
Under article 32, for the enforcement of the fundamental rights the Supreme Court has the power to issue suitable directions or orders or writs.
Article 141 says that the law declared by the Supreme Court shall be binding on all courts; and article 142 enables it in the exercise of its jurisdiction to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
These articles are designedly made comprehensive to enable the Supreme Court to declare law and to give such directions or pass such orders as are necessary to do complete justice.
The expression "declared" is wider than the words "found or made".
To declare is to announce opinion.
Indeed, the latter involves the process, while the former expresses result.
Interpretation, ascertainment and evolution are parts of the process, while that interpreted, ascertained or evolved is declared as law.
The law declared by the Supreme Court is the law of the and.
If so, we do not see any acceptable reason why it, in declaring the law in superses 814 sion of the law declared by it earlier, could not restrict the operation of the law as declared to future and save the transactions, whether statutory or otherwise that were effected on the basis of the earlier law.
To deny this power to the Supreme Court on the basis of some outmoded theory that the Court only finds law but does not make it is to make ineffective the powerful instrument of.
justice placed in the hands of the highest judiciary of this country.
As this Court for the first time has been called upon to apply the doctrine evolved in a different country under different ,circumstances, we would like to move warily in the beginning.
We would lay down the following propositions : (I) The doctrine of prospective over ruling, can be invoked only in matters arising under our Constitution; (2 it an be applied only by the highest court of the country, i.e., the Supreme Court as it has the constitutional jurisdiction to declare an binding on all the courts in India; (3) the scope of the retroactive operation of the law declared by the Supreme Court superseding its earlier decisions .is left to its discretion to be moulded in accordance with the justice of the cause or matter before it.
We have arrived at two conclusions, namely, (1) Parliament has no power to amend Part III of the Constitution so as to take away or abridge the fundamental rights; and (2) this is a fit case to invoke and apply the doctrine or prospective overruling.
What then is the effect of our conclusion on the instant case ?.
Having regard to the history of the amendments their impact on the social and economic affairs of our country and the chaotic situation that may be brought about by the sudden withdrawal at this stage of the amendments from the Constitution, we think that considerable judicial restraint is called for.
We, therefore, declare that our decision will not affect the validity of the Constitution (Seventeenth Amendment) Act, 1964, or other amendments made to the Constitution taking away or abridging the fundamental rights.
We further declare that in future Parliament will have no power to amend Part III of the Constitution so as to take away or abridge the fundamental rights.
In this case we do not propose to express our opinion on the question of the scope of the amendability of the provisions of the Constitution other than the fundamental rights, as it does not arise for consideration before us.
Nor are we called upon to express out opinion on the question regarding the scope of the amends ability of Part Ill of the constitution otherwise than by taking away or abridging the fundamental rights.
We will not also in dicate our view one way or other whether any of the Acts questioned can be sustained under the provisions of the Constitution without the aid of articles 31A, 31B and the 9th Schedule.
815 The aforesaid discussion leads to the following results (1) The power of the Parliament to amend the Constitution is derived from articles 245, 246 and 248 of the Constitution and not from article 368 thereof which only deals with procedure.
Amendment is a legislative process.
(2) Amendment is 'law ' within the meaning of article 13 of the Constitution and, therefore, if it takes away or abridges the rights conferred by Part III thereof, it is void.
(3) The Constitution (First Amendment) Act, 1951, Constitution (Fourth Amendment) Act, 1955, and,the Constitution (Seventeenth Amendment) Act, 1964, abridge the scope.
of the fundamental rights.
But, on the basis of earlier decisions of this Court, they were valid.
(4) On the application of the doctrine of 'prospective over ruling ', as explained by us earlier, our decision will have only prospective operation and, therefore, the said amendments will continue to be valid.
(5) We declare that the Parliament will have no power from the date of this decision to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights enshrined therein.
(6) As the Constitution (Seventeenth Amendment) Act holds the field, the validity of the two impugned Acts, namely, the Punjab Security of Land Tenures Act X of 1953, and the Mysore Land Reforms Act X of 1962, as amended by Act XIV of 1965, cannot be questioned on the ground that they offend articles 13, 14 or 31 of the Constitution.
Before we close, it would be necessary to advert to an argu ment advanced on emotional plane.
It was said that if the provisions of the Constitution could not be amended it would lead to revolution.
We have not said that the provisions of the Constitution cannot be amended but what we have said is that they cannot be amended so as to take away or abridge the fundamental rights.
Nor can we appreciate the argument that all the agrarian reforms which the Parliament in power wants to effectuate cannot be brought about without amending the fundamental rights.
It was exactly to prevent this attitude and to project the rights of the that the fundamental rights were inserted in the Constitution.
If it is the duty of the Parliament to enforce the directive principles, it is equally its duty to enforce them without infringing the fundamental rights.
The Constitution makers thought that it could be done and we also think that the directive prin 816 ciples can reasonably be enforced within the self regulatory machinery provided by Part III.
Indeed both Parts III and IV of the Constitution form an integrated scheme and is elastic enough to respond to the changing needs of the society.
The verdict of the Parliament on the scope of the law of social control of fundamental rights is not final, but justiciable.
If not so, the whole scheme of the Constitution will break.
What we can I not understand is how the enforcement of the provisions of the Constitution can bring about a revolution.
History shows that revolutions are brought about not by the majorities but by the minorities and some time by military coups.
The existence of an all comprehensive amending power cannot prevent revolutions, if there is chaos in the country brought about by mis rule or abuse of power.
On the other hand, such a restrictive power gives stability to the country and prevents it from passing under a totalitarian or dictatorial regime.
We cannot obviously base our decision on such hypothetical or extraordinary situations which may be brought about with or without amendments.
Indeed, a Constitution is only permanent and not eternal.
There is nothing to choose between destruction by amendment or by revolution, the former is brought about by totalitarian rule, which cannot brook constitutional checks and the other by the discontentment brought about by mis rule.
If either happens, the constitution will be a scrap of paper.
Such considerations are out of place in construing the provisions of the Constitution by a court of law.
Nor are we impressed by the argument that if the, power of amendment is 'not all comprehensive there will be no way to change the structure of our Constitution or abridge the fundamental rights even if the whole country demands for such a change.
Firstly, this visualizes an extremely unforeseeable and extravagant demand; but even if such a contingency arises the residuary power of the Parliament may be relied upon to call for a Constituent Assembly for making a new Constitution or radically changing it.
The recent Act providing for a poll in Goa, Daman and Diu is an instance of analogous exercise of such residuary power by the Parliament.
We do not express our final opinion on this important question.
A final appeal is made to us that we shall not take a different view as the decision in Sankari Prasad 's case(1) held the field for many years.
While ordinarily this Court will be reluctant to reverse its previous decision, it is its duty in the constitutional field to correct itself as early as possible, for otherwise the future progress of the country and the happiness of the people will be at stake.
As we are convinced that the decision in Sankari Prasad 's case(1) is wrong, it is pre eminently a typical case where this Court should over rule it.
The longer it holds the field the greater will (1) ; , 105 817 be the scope for erosion of fundamental rights.
As it contains the seeds of destruction of the cherished rights of the people the sooner it is over ruled the better for the country.
This argument is answered by the remarks made by this Court in the recent judgment in The Superintendent and Legal Remembrancer State of West Bengal vs, The Corporation of Calcutta(1).
"The third contention need not detain us ] 'or it has been rejected by this Court in The Bengal Immunity Company Limited vs The State of Bihar(2) .
There a Bench of 7 Judges unanimously held that there was nothing in the Constitution that prevented the Supreme Court from departing from a previous decision of its own if it was satisfied of its error and of its baneful effect on the general interest of the public.
If the aforesaid rule of construction accepted by this Court is in consistent with the legal philosophy of our Constitution, it is our duty to correct ourselves and lay down the right rule.
In constitutional matters which affect the evolution of our polity, we must more readily do so than in other branches of law, as perpetuation of a mistake will be harmful to public interests.
While continuity and consistency are conducive to the smooth evolution of the rule of law, hesitancy to set right deviation will retard its growth.
In this case, as we are satisfied that the said rule of construction is inconsistent with our republican polity and, if accepted, bristles with anomalies, we have no hesitation to reconsider our earlier decision." In the result the petitions are dismissed, but in the circumstances without costs.
Wanchoo, J.
This Special Bench of eleven Judges of this Court has been constituted to consider the correctness of the decision of this Court in Sri Sankari Prasad Singh Deo vs Union of India(,,) which was accepted as correct by the majority in Sajjan Singh vs State of Rajasthan (4) .
The reference has been made in three petitions challenging the constitutionality of the Seventeenth Amendment to the Constitution.
In one of the petitions, the inclusion, of the Punjab Security of Land Tenures Act, (No. X of 1953) in the Ninth Schedule, which makes it immune from.
attack under any provisions contained in Part III of the Constitution ' has been attacked on the ground that the Seventeenth Amendment is in itself unconstitutional.
In the other two petitions, the inclusion of the Mysore Land Reforms Act, (No. 10 of 1962) has been attacked on the same grounds.
It is not necessary to set out the facts in (1) ; ,176 (2) [1955] 2S.C.R.603.
(3) ; (4) [1965] 1.C.S.R. 933. 818 the three petitions for present purposes.
The main argument in all the three petitions has been as to the scope and effect of article 368 of the Constitution and the power conferred thereby to amend the Constitution.
Before we come to the specific I points raised in the present petitions, we may indicate the circumstances in which Sankari Prasad 's case(1) as well as Sajjan Singh 's case (2) came to be decided and what they actually decided.
The Constitution came into force on January 26,.1950.
It provides in Part III for certain fundamental rights.
Article 31 which is in Part 111, as it originally stood, provided for compulsory acquisition of property.
By clause (1) it provided that "no person shall be deprived of his property save by authority of law".
Clause (2) ;hereof provided that any law authorising taking of Possession or acquisition of property must provide for compensation therefor and either fix the amount of compensation or specify the principles on which, and the manner in which the compensation was to be determined and paid.
Clause(4) made a special provision to the effect that if any Bill pending at the commencement of the Constitution in the Legislature of a State had, after it had been passed by such Legis lature, been reserved for the consideration of the President and had received his assent, then such law would not be called in question though it contravened the provisions of cl.
(2) relating to compensation.
Clause (6) provided that any law of the State enacted not more than eighteen months before the Constitution might be submitted to the President for his certification, and if so certified, it could not be called in question on the ground that it contravened the provision of cl.
(2) of article 31 relating to compensation.
These two clauses of article 31 were meant to safeguard legislation which either had been passed by Provincial or State legislatures or which was on the anvil of State legislatures for the purpose of agrarian reforms.
One such piece of legislation was the Bihar Land Reforms Act, which was passed in 1950.
That Act received the assent of the President as required under cl.
(6) of article 31.
It was however challenged before the Patna High Court and was struck down by that court on the ground that it violated Art ' 14 of the Constitution.
Then there was an appeal before this Court, but while that appeal was pending, the First Amendment to the Constitution was made.
We may briefly refer to what the First Amendment provided for.
It was the First Amendment which was challenged and was upheld in Sankari Prasad 's case(1).
The First Amendment contained a number of provisions; but it is necessary for present purposes only to refer to those provisions which made changes in Part III of the Constitution.
These changes related to articles 15 (1) ; (2) ; 819 and 19 and in addition, provided for insertion of two Articles, numbered 31 A and 31 Bin Part III Article 31 A provided that no law providing for the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights shall be deemed to be void on the ground that it was.
inconsistent with, or took away or abridged any of the rights conferred by any provision in part Ill. 'The word "estate" was also defined for the purpose of article 31 A Further Article 31 B. provided for validation of certain Acts and Regulations and specified such Acts and Regulations in the Ninth Schedule, which was for the first time added to the Constitution.
The Ninth Schedule then contained 13 Acts, all relating to estates , passed by various legislatures of the Provinces or States.
It laid down that those Acts and Regulations would not be deemed to be void or ever to have become void, on the ground that they were inconsistent with.
or took away or abridged any of the rights conferred by any provision of Part III.
It further provided that notwithstanding any judgment, decree or order of any court or tribunal to the contrary, all such Acts and Regulations subject to the power of any competent legislature to repeal or amend them, continue in force.
This amendment, and in particular articles 31 A and 31 B were.
immediately challenged by various writ petitions in this Court and these came to be decided on October 5, 1951 in Sankari Prasad 's case(1).
The attack on the validity of the First Amendment was made on various grounds; but three main grounds which were.
taken were, first 1 , that amendments to the Constitution made under article 368 were liable to be tested under article 13(2); secondly that in any case as articles 31 A and 31 B insert the Constitution by the First.
Amendment affected the power of the High Court under article 226 1 and of this Court under Articles 132 and 136; the amendment required ratification under the proviso to article 368; and, thirdly that Acts.
31 A and 31 B were invalid on the ground that they related to matters covered by the State List, namely, item 18 of List 11, and could not therefore be passed by Parliament.
This Court rejected all the three contentions.
It held that although ."law" would ordinarily include constitutional law, there was a clear demarcation between ordinary law made in the exercise of legislative power and constitutional law made in the exercise of constituent power, and in the context of article 13, "law" must be taken to mean rules or regulations made.
in exercise of ordinary legislative power and not amendments to, the Constitution made in the exercise of constituent power; in consequence article 13(2) did not affect amendments made under article 3 68.
It further held that articles 3 1 A and 31 B did not curtail the power of the High Court under article 226 or of this court under articles 132 and 136 and did not require ratification under the (1) ; 820 proviso contained in article 368.
Finally, it was held that articles 31.
A and 31 B were essentially amendments to the Constitution and Parliament as such had the power to enact such amendments.
In consequence, the First Amendment to the Constitution was upheld as valid.
After this decision, there followed sixteen more amendment .to the Constitution till we come to the Seventeenth Amendment, which was passed on June 20, 1964.
There does not seem to have been challenge to any amendment up to the Sixteenth Amendment, even though two of them, namely, the Fourth Amendment and the Sixteenth Amendment,, contained changes in the provisions of Part III of the Constitution.
Further the nature of these amendments was to add to, or alter or delete various other provisions of the Constitution contained in Part III thereof On December 5, 1961 came the decision of this Court by which the Kerala Agrarain Reforms Act (No. 4 of 1961), passed by the Kerala legislature, was struck down, among other grounds, for the reason that ryotwari lands in South India were not estates within the meaning of article 31 A and therefore acquisition of reyotwari land was not protected under article 31 A of the Constitution : [see Karimbil Kunhikoman vs State of Kerala(1)].
This decision was followed by the Seventeenth Amendment on June 20, 1964.
By this amendment, changes were made in article 31 A of the Constitution and 44 Acts were included in the Ninth Schedule to give them complete protection from attack under any provision of Part III of the Constitution.
Practically all these Acts related to land tenures and were concerned with agrarian reforms.
This amendment was challenged before this 'Court in Sajjan Singh 's case(2).
The points then urged were that as article 226 was likely to be affected by the Seventeenth Amendment, it required ratification under the proviso to article 368 and that the decision in Sankari Prasads case(3) which had negatived this contention required re consideration.
It was also urged that the Seventeenth Amendment was legislation with respect to land and Parliament bad no right to legislate in that behalf, and further that as the Seventeenth Amendment provided that the Acts put in the Ninth Schedule would be valid in spite of the decision of the Courts, it was unconstitutional.
This Court by a majority of 3 to 2 upheld the correctness of the decision in Sankari Prasad 's case(,,).
It further held unanimously that the Seventeenth Amendment did not require ratification under the proviso to article 368 because of its indirect effect on article 226, and that Parliament in enacting the Amendment was not legislating with respect to land and that it was open to Parliament to validate legislation which had been invalid by courts.
Finally this Court held by majority (1) [1962] Supp. 1 S.C.R. 829.
(2) ; (3) ; 821 that the power conferred by article 368 included the power to take away fundamental rights guaranteed by Part HI and that the power to amend was a very wide power and could not be controlled by the literal dictionary meaning of the word "amend" and that the word "law" in article 13 (2) did not include an amendment of the Constitution made in pursuance of article 368.
The minority however doubted the correctness of the view taken in Sankari Prasads case(1) to the effect that the word 'law" in article 13 (2) did not include amendment to the Constitution made under article 368 and therefore doubted the competence of Parliament to make any amendment to Part III of the Constitution.
One of the learned Judges further doubted whether making a change in the basic features of the Constitution could be regarded merely as an amendment or would, in effect, be re writing a part of the Constitution, and if so, whether it could ' be done under article 368.
It was because of this doubt thrown on the correctness of the view taken in Sankari Prasad 's case(1) that the present reference has been made to this Special Bench.
As the question referred to this Bench is of great constitutional importance and affected legislation passed by various States, notice was issued to the Advocates General of all States and they have appeared and, intervened before us.
Further a number of persons who were also affected by the Seventeenth Amendment have been permitted to intervene.
The arguments on behalf of the petitioners and the interveners who support them may now.
be briefly summarised.
It is urged that article 368 when it provides for the amendment of the Constitution merely ' contains the procedure for doing so and that the power to make amendment has to be found.
in article 248 read with item 97 of List 1.
It is further urged that the word "amendment" in article 368 means that the provisions in the Constitution can be changed so as to important upon them And that this power is of a limited character and does not authorise Parliament to make any addition to, alteration of or deletion of any ,provision of the Constitution, including the provision contained in Part III.
So article 368 authorises only those amendments which have the effect of improving the Constitution.
Then it is urged that amendment permissible under article 368 is subject to certain implied limitations and the these limitations are that basic features of the Constitution cannot be amended at all.
An attempt was made to indicate some of these basic features, as, f( example, the provisions in Part III, the federal structure, the republican character of the State, elected Parliament and State Legislatures on the basis of adult suffrage, control by the judiciary and so on, and it is.
said that an amendment under article 3 69 is subject to the implied limi (1) (1952] S.C.R. 89.
L3Sup.
CI/67 7 822 tations that these basic features and others of the kind cannot be, changed.
Thus in effect the argument is that there is a very limited power of amendment under the Constitution.
It is further urged that apart from these implied limitations, there is an express limitation under article 13(2) and the word "law in that Article includes an amendment of the Constitution.
The argument thus in the alternative is that as the word "law" in article 13(2) includes a constitutional amendment, no amendment can be made in Part HI under article 368 which would actually take away or abridge the rights guaranteed under that Part.
In effect, it is said that even if there are no implied limitations to amend the Constitution under article 368, article 13(2) is an express limitation insofar as the power to amend Part III is concerned and by virtue of article 13(2) the rights guaranteed under Part III cannot be taken away or abridged under article 368, though it is conceded that Part III may be amended by way of enlarging the rights contained therein.
Another line of argument is that in any case it was necessary to take action under the proviso to article 368 and as that was not done the Seventeenth Amendment is not valid.
It is urged that article 2,26 is seriously affected by the provisions contained in the Seventeenth Amendment and that amounts to an amendment of Aft.
226 and in consequence action under the proviso was necessary.
It is also urged that article 245 was addition of a number of Acts in the Ninth 13 (2) and therefore also it was necessary to take action under the proviso.
It is further urged that it was not competent for Parliament to amend the Constitution by putting a large number of Acts in the Ninth Schedule as the power to legislate with respect to land is solely within the.
competence of State Legislatures and that is another reason why the addition to the Ninth Schedule read with article 31 B should be struck down.
Lastly an argument had been advanced which we may call the argument of fear.
It is said that if Art.368 is held to confer full to amend each and every part of the Constitution as has been held in Sankari Prasad 's case(1).
Parliament May do all kinds of things, which were never intended, under this unfettered power and may, for example, abolish elected legislatures, abolish the President or change the present form of Government into a Presedential type like the United States.
Constitution or do away with the federal structure altogether.
So it is urged that, we should,interpret article 368 in such a way that Parliament may not be able to do all these things.
In effect this argument of fear has been put forward to reinforce the contention that this Court should (1)[1952] S.C.R. 89.
823 hold that there are some implied limitations on the amending power and these implied limitations should be that there is no power any where in the Constitution to change the basic features of the Constitution to which reference has already been made.
This is in brief the submission on behalf of the petitioners and the interveners who support them.
The submission on behalf of the Union of India and the States may now be summarised.
It is urged that article 368 not only provides procedure or amendment but also contains in it the power to amend the Constitution.
It is further urged that the word "amendment" in law does not merely mean making such changes in the Constitution as would improve it but includes the power to make any addition to the Constitution, any alteration of any of the existing provisions and its substitution by another provisions, and any deletion of any particular provision of the Constitution.
In .effect, it is urged that even if the word "amendment" used in article 368 does not take in the power to abrogate the entire 'Constitu tion and replace it by another new Constitution, it certainly means that any provisions of the Constitution may be changed and this change can be in the form of addition to, alteration of or deletion of any provision of the Constitution.
So long therefore as the Constitution is not entirely abrogated and replaced by a new Constitution at one stroke, the power of amendment would enable Parliament to make all changes in the existing Constitution by addition, alteration or deletion.
Subject only to co repeal being not possible, the power of amendment contained in article 368 is unfettered.
It is further urged that there can be no implied limitations on the power to amend and the limitations if any on this.
power must be found hi express terms in the Article providing for amendment.
It is conceded that there may be an express limitation not merely in the Article providing for amendment, but in some other part of the Constitution.
But it is said that if that is so, there must be a clear provision to that effect.
In the absence of express limitations, therefore, there can be no implied limitations ,on the power to amend the Constitution contained in article 368 and that power will take in all changes whether by way of addition, alteration or deletion, subject only to this that the power of amendment may riot contain the, power to abrogate and repeal the entire Constitution and substitute it with a new one.
It is then urged that there is no express provision in Art.368 itself so far as any amendment relating to the substance of the amending power is concerned , die only limitations in Art, 368 are as to procedure and courts can only see that the procedure as indicated in article 368 is followed before an amendment can be said to be valid.
It is further urged that the word "law", in article 13 does not include an amendment of the Constitution and only 824 moans law as made.
under the legislative provisions contained in Chapter, I of Part XI read with, Chapters II and III of Part V of the.
Constitution and Chapters III and V of Part VI thereof.
In effect it is a law which is made under the Constitution which included in the word "law" in article 13(2) and not an amendment to the Constitution under article 368.
As to Articles 226 and 245 and the necessity of taking action under the proviso to article 368, it is urged that there is no change in articles 226 and 245on account of any provision in the Seventeenth Amendment and therefore no action under the proviso was necessary.
it is only direct change in articles 226 and 245 which would require following the procedure as to ratification or at any rate such change in other Articles which would have the effect of directly compelling change in Arts 226 and 245 and that in the present case no such direct compulsion arises.
Lastly as to the argument of fear it is urged that there is always a provision with respect to amendment in written federal Constitutions.
Such a provision may be rigid or flexible.
In our Constitution article 368 provides for a comparatively flexible provision for amendment and there is ' no reason to make it rigid by implying any limitations on that power.
Further there Is no reason to suppose that all those things will be done by Parliament which are being urged to deny the power under article 368 which flows naturally from its terms.
Besides the above, reliance is also placed on behalf of the Union of India and the States on the doctrine.
of stare decisis.
It is urged that since the decision of this Court in Sankari Prasad 's case(1), sixteen further amendments have been made by Parliament on the faith of that decision involving over 200 Articles of the Constitution.
The amendments relating to Part III have been mainly with respect to agrarian reforms resulting in transfers of title of millions of acres of land in favour of millions of people.
Therefore ', even though Sankari Prasad 's case(1) has stood only for fifteen years there has been a vast agrarian revolution effected on the faith of that decision and this Court should not now go back on what was decided in that case.
Further, besides the argument based on state decisis, it is urged on the basis of certain decisions of this Court that the unanimous decision in Sankari Prasad 's case(1) which had stood practically unchallenged for about '15 'years till the decision in Sajjan Singh 's case(2), should not be over ruled unless it is found to be incorrect by a large majority of the Judges constituting this Special Bench.
It is urged that if the present Bench is more or less evenly divided it should not over rule the unanimous decision in ' Sankari Prasad 's case(1) by a Majority of one.
(1) (1952] S.C.R. 89.
(2) ; 825 We shall first take Art, 368.
It is found in Part XX of the Constitution which is headed.
Amendment of the Constitution" and is the only Article in that Part.
That Part thus provides specifically for the amendment of the Constitution, and the first question that arises is whether it provides power for the amendment of the Constitution as well as the procedure for doing so.
It is not disputed that the procedure for amendment of the Constitution is to be found in article 368, but what is in dispute is whether article 368 confers power also in that behalf.
Now the procedure for the amendment of the Constitution is this: The amendment is initiated by the introduction of a Bill in either House of Parliament.
The Bill has to be passed in each House by a majority of the total membership of that House and by a Majority of not less two thirds of the members of that House present and voting.
After it is so passed, it has to be presented to the President for his assent.
On such presentation if the President assents to the Bill, article 3 68 provides that the Constitution shall stand amended in accordance with the terms of the Bill.
Further there is a proviso for ratification with respect to certain Articles and other provisions of the Constitution including article 368, and those matters can only be amended if the Bill passed by the two Houses by necessary majority is ratified by the legislatures of not less than one half of the States by resolutions to that effect.
In such a case the Bill cannot be presented for his assent to the President until necessary ratification is available.
But when the. necessary ratification has been made, the Bill with respect to these matters is then presented to the President and on his assent being given, the Constitution stands amended.
in accordance with the terms of the Bill.
The argument is that there is no express provision in terms in article 368 conferring power on Parliament to amend the Constitution, and in this connection our attention has been invited to an analogous provision in the Constitution of Ireland in article 46, where cl. 1 provides that any provision of the Constitution, may be amended in the manner provided in that Article, and then follows the procedure for amendment in clauses 2 to 5.
Reference is also made to similar provisions in.
other constitutions, but it is unnecessary to refer to them.
It is urged that as article 368 has nothing comparable to cl.
I of article 46 of the Irish Constitution, the power to amend the Constitution is not in.
article 3 68 and must .be.
found elsewhere.
We are not prepared to accept this argument.
The fact that article 368 is not in two parts, the first part indicating that the Constitution shall be amended in the manner provided thereafter, and the second part indicating the procedure for amendment, does not mean that the power to amend the Cons titution is not contained in article 368 itself.
The very fact that a 826 separate Part has been devoted in the Constitution for amendment thereof and there is only one Article in that Part shows that both the power to amend and the procedure for amendment are to be found in article 368.
Besides, the words "the Constitution shall stands amended in accordance 'with the terms of the Bill" in article 368 clearly in our opinion provide for the power to amend after the procedure has been followed.
It appears that our Constitution makers were apparently thinking of economy of words and elegance of language in enacting article 368 in the terms in which it appears and that is why it is not in two parts on the model of Art.46 of the Irish Constitution.
But there can in our opinion.
be not doubt, when a separate Part was provided headed "Amendment of the Constitution" that the power to amend the Constitution must also be contained in article 368 which is the only Article in that Part.
If there was any doubt about the matter, that doubt in our opinion is resolved by the words to which we have already referred namely "the Constitution shall stand amended in the terms of the Bill".
These words can only mean that the.
power is there to amend the Constitution after the procedure has been followed.
It is however urged that the power to amend the Constitution is not to be found in article 368 but is contained in the residuary power of Parliament in article 48 read with item 97 of List 1.
It is true that article 248 read with item 97 of List I, insofar as it provides for residuary power of legislation, is very wide in its scope and the argument that the, power to amend the Constitution is contained in this provision appears prima facie attractive 'in view of the width of the residuary power.
But we fail to see why when there is a whole Part devoted to the amendment of the Cons titution the power to amend should not be found in that Part, if it can be reasonably found there and why article 368 should only be confined to providing for procedure for amendment.
It is true that the marginal note to article 368 is "procedure for amendment of the Constitution", but.
the marginal note cannot control the meaning of the words in the Article itself, and we have no doubt that the words "the Constitution shall stand amended in accord the power of amendment.
If we were to compare the language of cls.
2 to 5of article 46 of the Irish Constitution which prescribes the procedure for amendment, we find no words therein comparable to these words in article 368.
These words clearly are com parable to cl.
I of article 46 of the Irish Constitution and must be rod as conferring power on Parliament to amend the Constitution.
Besides it is remarkable in contrast that article 248 read with List I does not in terms mention the amendment of the Constitution.
while therefore there is a whole Part devoted to the amendment of the Constitution, we do not find any specific mention of the 827 amendment of the Constitution in article 248 or in any entry of List 1.
It would in the circumstances be more appropriate to read in power in article 3 68 in view of the, words which we have already referred to than in article 248 read with item 97 of List I.
Besides it is a historical fact to which we can refer that originally the intention was to vest residuary power in States, and if that intention had been eventually carried out, it would have been impossible for any one to argue that the power to amend the Constitution was to be found in the residuary power if it had been vested in the States and not in the Union.
The mere fact that during the passage of the Constitution by the Constituent Assembly, residuary power was finally vested in the Union would not therefore mean that it includes the power to amend the Cons titution.
On a comparison of the scheme, of the words in Art 368 and the scheme of the words in article 248 read with item 97 of List 1, therefore, there is no doubt in our mind that both the procedure and power to amend the Constitution are to be found in article 368 and they are not to be found in article 248 read with item 97 of List I which provides for residuary legislative power of Parliament.
There is in our opinion another reason why the power to amend the Constitution cannot found in article 248 read with item 97 of List 1.
The Constitution is the fundamental law and no law passed under mere legislative power conferred by the Constitution can affect any change, in the Constitution unless there is an express power to that effect given in the Constitution itself.
But subject to such express power given by the Constitution itself, the fundamental law, namely the Constitution, cannot be changed by a law passed under the legislative provisions contained in the Constitution as all legislative acts passed under the power conferred by the Constitution must conform to the Constitution can make no change therein.
There are a number of Articles in the Constitution, which expressly provide for amendment by law, as,.
for example, 3, 4, 10, 59(3), 65(3), 73(2), 97, 98(3), 106, 120(2), 135, 137, 142(1), 146(2), 148(3), 149, 169, 171(2), 196, 187(3), 189(3), 194(3), 195, 210(2), 221(2).
225, 229(2), 239(1), 241(3), 283(1) and (2), 285(2), 287, 306(1), 313, 345, 373, Sch.
V. cl. 7 and Sch.
VI, cl. 21,, and so far as these Articles are concerned they can be amended by Parliament by.
ordinary law making process.
But so far as the other Articles are concerned they can only be amended by amendment of 'the Constitution under article 368.
Now article 245 which gives power to make law for the whole or any part of the territory of India by Parliament is "subject to the provisions of this Consti tution" and any law made by Parliament whether under article 246 read with List I or under article 248 read with item 97 of List I be subject to the provisions of the Constitution.
If therefore the power to amend the Constitution is contained in article 248 828 read with item 97 of List 1, that power has to be exercised subject to the provisions of the Constitution and cannot be used to change the fundamental law (namely, the Constitution) itself.
But it is argued that article 368 which provides a special procedure for amendment of the Constitution should be read along with articles 245 248, and so read it would be open to amend any provision of the Constitution by law passed under article 248 on the ground that article 248 is subject to article 368 and therefore the two together give power to Parliament to pass a law under article 248 which will amend even those provisions of the Constitution which are not expressly made amendable by law passed under the legislative power of Parliament.
This in our opinion is arguing in a circle.
If the fundamental law (ie.
the Constitution) cannot be I changed by any law passed under the legislative powers contained therein, for legislation so passed must conform to the fundamental law, we fail to see how a law, passed under the residuary power which is nothing, more than legislative power conferred on parliament under the Constitution, can change the Constitution (namely, the fundamental law) Itself.
We,may in this connection refer to the following passage in The Law.and the Constitution by W. Ivor Jennings (1933 Ed.) at p. 51 onwards : "A written constitution is thus the fundamental law of a country, the express embodiment of the doctrine of the region of law.
All public uthorities legislative, administrative and judical take their powers directly or indirectly from it. .Whatever the nature of the written constitution it is clear that there "is a fundamental distinction between constitutional law and the rest of the law. .
There is a clear separation, therefore, between the constitutional law and the rest of the law.
" It is because of this difference between the.
fundamental law (namely, the Constitution) and the law passed under the legislative provisions of the Constitution that it is not possible in the absence of an express provision to that effect in the fundamental law to ,change the fundamental law by ordinary legislation passed thereunder, for such ordinary legislation must always conform to the fundamental law (i.e. the Constitution).
If the power to amend the Constitution is to be found in article 248 read with item 97 of List 1.
It will mean that ordinary legislation passed under fundamental law would amend that law and this cannot be done unless there is express provision as in article 3 etc.
to that effect In the absence of such express provisions any law passed under the legislative powers granted under the fundamental ' law cannot amend it.
So if we were to hold that the power to amend the 829 Constitution is comprised in article
248, that would mean that no amendment ,of the Constitution would be possible at all except to the extent expressly provided in various Articles to which we have referred already, for the power to legislate under article 245 read with article 248 is itself subject to the Constitution.
Therefore reading article 368 and considering the scheme of the legislative powers conferred by Articles 245 and 248 read with item 97 of List I" this to our mind is clear, firstly that the power to amend the, Constitution is to be found in article 368 itself, and secondly, that the power to amend the Constitution can never reside in article 245 and article 248 read with item 97 of List 1, for that would make any amendment of the Constitution impossible except with respect to the express provisions contained in certain Articles thereof for amendment by law .
We may in this connection add that all this argument that power to amend the Constitution is to be found in article 245 and article 248 read with item 97 of List I has been based on one accidental circumstance, and that accidental circumstance is that the procedure for amendment of the Constitution contained in article 368 is more or less assimilated to the procedure for making ordinary laws under the Constitution.
The argument is that constitutional amendment is also passed by the two Houses of Parliament, and is assented to by the President like ordinary legislation, with this difference that a special majority is required for certain purposes and a special majority plus ratification is required for certain other purposes.
It may be admitted that the procedure for amendment under article 368 is somewhat similar to the procedure for passing ordinary legislation under the Constitution.
Even so, as pointed out by Sir Ivor Jennings in the passage already quoted, there is a clear separation between constitutional law and the rest of the law and that must never be forgotten.
An amendment to the Constitution is a constitutional law and as observed in Sankari Prasad 's case(1) is in exercise of constituent power; passing of ordinary law is in exercise of ordinary legislative power and is clearly different from the power to amend the Constitution.
We may in this connection refer, for example, to article V of other U.S. Constitution, which provides for the, amendment thereof.
It will be clearly seen that the power contained in article V of the U.S. Constitution is not ordinary legislative power and no one can possibly call it ordinary legislative power, because the procedure provided for the amendment of the Constitution in article V differs radically from the procedure provided for ordinary legislation, for example, the President 's assent is not required constitutional amendment under article V of the U.S. Constitution,; Now if article 368 also had made a similar departure from the procedure provided for ordinary legislation, it could never have (1) [1952 ] 1 section C. R. 89 830 said that article 368 merely contained the procedure for amendment and that what emerges after that procedure is followed is ordinary law of the same quality and nature as emerges after following the procedure for passing ordinary law.
If, for example, the assent of the President which is to be found in article 368 had not been there and the Constitution would have stood amended after the Bill had been passed by the two Houses by necessary majority and after ratification by not less than one half of the States where so required , it could never have been argued that the power to amend the Constitution was contained in article 245 and 248 read with item 97 of List I and article 368 merely con tained the procedure.
We are however of opinion that we should look at the quality and nature of what is done under article 368 and not lay so much stress on the similarity of the procedure contained in article 368 with the procedure for ordinary lawmaking.
If we thus look at the quality and nature of what is done under article 368, we find that it is the exercise of constituent power for the purpose of amending the Constitution itself land is very different from the exercise of ordinary legislative power for passing laws which must be in conformity with the Constitution and cannot go against any provision thereof, unless there is express provision to that effect to which we have already referred.
If we thus refer to the nature and quality of what is done under article 368, we immediately See that what emerges after the procedure in article 368 is gone through is not ordinary law which emerges after the legislative procedure contained in the Constitution is gone through.
Thus article 368 provides for the coming into existence of what may be called the fundamental law in the form of an amendment of the Constitution and therefore what emerges after the procedure under article 368 is gone through is not ordinary legislation but an amendment of the Constitution which becoming a part of the fundamental law itself, by virtue of the words contained in article 368 to the effect that the Constitution shall stand amended in accordance with the terms of the 'Bill.
It is urged in this connection on behalf of the Union of India that even though the assent of the President is required under Aft. 368, the ;President must assent thereto and cannot withhold his assent as is possible in the case of ordinary law in view of article III of the Constitution, for the words "that he withholds assent therefrom" found in article III are not to be found in article 368.
It is however difficult to accept the argument on behalf of the Union that the President cannot withhold his assent when a Bill for amendment of the Constitution is presented to him.
Article '368 provides that a Bill for the amendment of the, Constitution shall be presented to the President for his assent.
It further provides 831 that upon such assent by the President, the Constitution shall, stand amended.
That in our opinion postulates that if assent is not given, the Constitution cannot be amended.
Whether a President will ever withhold his assent in our form of Government is a different matter altogether, but as we road article 368 we cannot.
hold that the President is bound to assent and cannot withhold his assent when a Bill for amendment of the Constitution is presented to him.
We are of opinion that 'the President can refuse to give his assent when a Bill for amendment of the Constitution is presented to him, the result being that the Bill altogether falls, for there is no specific provision for anything further to be done,: about the Bill in article 368 as there is in article III.
We may in this.
connection refer to the different language used in cl. 5 of article 46 of the Irish Constitution which says that "a Bill containing a proposal for the amendment of this Constitution shall be signed by the President Forthwith upon his being satisfied that the provisions of this Article have been complied with, in respect thereof '.
It will be seen therefore that if the intention kinder article 368 had been that the President cannot withhold his assent, we would have found language similar in terms to that in cl. 5 of article 46 of the Irish Constitution.
We thus see that in one respect at any rate article 368 even on its present terms differs from the power of the President in connection with ordinary legislation under the Constitution and that is if the President withholds his assent the Bill for amendment of ' the Constitution immediately falls.
We cannot accept that the procedure provided under the proviso to article 111 can apply in such a case, for this much cannot be disputed that so far as the procedure for amendment of the Constitution is concerned we must look to article 368 only and nothing else.
In any case the mere fact that the procedure in article 368 is very much assimilated.
to the procedure for passing ordinary legislation is no reason for, holding that what emerges after the procedure under article 368 is followed is ordinary law and no more.
We repeat that we must look at the quality and nature of what is done under article 368, and that is, the amendment of the Constitution.
If we look at that we must bold that what emerges is not ordinary law passed under the Constitution but something which has the effect of amending the fundamental law itself which could not be done by ordinary legislative process under the Constitution unless there is express provision to that effect.
We have already referred to such express provisions in various Articles, but article 368 cannot be treated as such an Article, for it deals specifically with the amendment of the Constitution as a whole.
It is also remarkable to note in this connection that the, word "law" which has been used in so many Articles of 'the Consti 832 tution has been avoided apparently with great care in article 368.
We again refer to the concluding words 368 which says that the "Constitution shall stand amended in accordance with the terms of the Bill.
Now it is well known that in the case of ordinary legislation as soon both Houses and has received the assent of the main part of article stand amended in ac it is well known that as the Bill is passed by of the President it becomes an Act.
But article 368 provides that as soon as the Bill for amendment of the Constitution has been passed in accordance with the procedure provided there in the Constitution shall stand amendmend in accordance with the terms of the Bill.
These words in our opinion have significance of their own.
It is also remarkable that these words clearly show the difference between the, quality of what emerges after the procedure under article, 368 is followed and what happens when ordinary law making procedure is followed.
Under article III, in the case of ordinary law making when a Bill is passed by the two Houses of parliament it is presented to the President and the President shall declare either that he assents to the Bill or that he withholds assent therefrom.
But it is remarkable that article 111 does not provide that when the Bill has been assented to by the President it becomes an Act ' The reason for this is that the Bill assented to by the President though it may become law is still not declared by article I I I to be a law, for such law is open to challenge in courts on various ,grounds, namely, on the ground that it violates any fundamental rights, or on the ground that Parliament was not competent to pass it or on the ground that it is in breach of any provision of the Constitution.
On the other hand we find that when a Bill for the amendment of the Constitution is passed by requisite majority and assented to by the President, the Constitution itself ,declares that the Constitution shall stand amended in accordance with the terms of the Bill.
Thereafter what courts can see is whether the procedure provided in article 368 has been followed, for if that is not done, the Constitution cannot stand amended in accordance with the terms of the Bill.
But if the procedure has been followed, the Constitution stands amended, and there is no question of testing the amendment of the Constitution thereafter on the anvil of fundamental rights or in any other way as in the case of ordinary legislation.
In view of an this we have no doubt that even though.
by accident the procedure provided in the Constitution for amendment thereof is very akin to the procedure for passing ordinary legislation, the power contained in article 368 is still not ordinary legislative power but constituent power for the specific purpose of amendment of the Constitution; and it is the quality of that power which determines the nature of what emerges after the procedure in article 368 has been followed and what thus emerges is not ordinary legislation but fundamental law which cannot be tested,.
for example, under article 13(2) of the Constitution or under any other provision of the Constitution.
833 We may briefly refer to an argument on behalf of the Union of India that the amending power contained in article 368 is same sovereign power which was possessed by the Constituent Assembly when it made the Constitution and therefore it is not subject to any fetters of any kind.
We do not think it necessary to enter into the academic question as to where sovereignty re sides and whether legal sovereignty is in the people and political.
sovereignty in the body which has the power to amend the Constitution and vice versa.
In our view the words of article 368 clearly confer the power to amend the Constitution and also provide the procedure for doing so, and that in our opinion is enough for the purpose of deciding whether the Seventeenth Amendment is valid or not.
Further as we have already stated, the power conferred under article 368 is constituent power to change the fundamental law i.e. the Constitution, and is distinct and different from the ordinary legislative power conferred on Parliament by various other provisions in the Constitution.
So long as this distinction is kept in mind Parliament would have the power under article 368 to amend the Constitution and what Parliament does under article 368 is not ordinary law making which is subject to article 13 (2) or any other Article of the Constitution.
What is the extent of the power conferred on Parliament and whether there are any limitations on it express or implied will be considered by us presently.
But we have no doubt, without entering into the question of sovereignty and of whether article 368 confers the same sovereign power on Parliament as the Constituent Assembly had when framing the Constitution, that article 368 does confer power on Parliament subject to the procedure provided therein for amendment of any provision of the Constitution.
This brings us to the scope and extent of the power conferred, for amendment under article 368.
It is urged that article 368 only gives power to amend the Constitution.
Recourse is had on behalf of the petitioners to the dictionary meaning of the word, "amendment".
It is said that amendment implies and means improvement in detail and cannot take in any change in the basic features of the Constitution.
Reference in this connection may be made to the following meaning of the word " 'amend" in the Oxford English Dictionary, namely, "to make professed improvements in a, measure before Parliament; formally, to after in detail, though practically it may be to alter its principle, so as to thwart ".
This meaning lit any rate does not support the case of the petitioners that amendment merely means such change as results in improvement in detail.
It shows that in law though amendment MAY professedly, be intended to make improvements and to alter only in detail, in reality, it may make a radical change in the provision which is amended.
In any case, as was pointed out in Sajjan Singh 's case(1) the word "amend" or "amendment" ' is well under (1) ; 834 stood in law and will certainly include any change whether by way of addition or alteration or deletion of any provision in the Constitution.
This is no reason to suppose that when the word.
"amendment" of the Constitution was being used in article 368, the intention was to give any meaning less than what we have stated above.
To say that "amendment" in law only means a change 'which results in improvement would make amendments impossible, for what is improvement of an existing law is a matter of opinion and what, for example, the legislature may consider an improvement may not be so considered by others.
It is therefore in our opinion impossible to introduce in the concept of amendment as used in article 368 any idea of improvement as to details of the Constitution.
The word "amendment" used in article 368 must therefore be given its full meaning as used in law and that .means that by amendment an existing Constitution or law can be changed and this change can take the form either of addition to the existing provisions, or alteration of existing provisions and their substitution by others or deletion of certain provisions.
altogether.
In this connection reference has been made to contrast certain other provisions of the Constitution, where, for example the word "amend" has been followed by such words as "by way of addition, variance or repeal" (see Sixth Schedule, paragraph 2 1) and more or less similar expressions in other Articles,of the Constitution.
it is very difficult to say fact, that no such words appear in article make any difference, for the meaning of the word why this was done.
But the 368 does not in our, mind "amendmend" in law is clearly as indicated above by us and the presence or sense, of explanatory words of the nature indicated above do not in our opinion make any difference.
The question whether the power of amendment given by article 368 also 'includes the power to abrogate the Constitution completely and to replace it by an entire new Constitution, does not really arise in the present case, for the Seventeenth Amendment has not done any such thing and need not be considered.
It is enough to say that it may be open to doubt whether the power of amendment contained in article 568 goes to the extent of completely abrogating the present Constitution and substituting it by an entirely new one.
But short of that, we are of opinion that the power to amend includes the power to add any provision to the Constitution.
to alter any provision and substitute any other provision in its place and to delete any provision.
The Seventeenth Amendment is merely in exercise of the power of amendment a indicated above and cannot be struck down on the ground that it goes beyond the power conferred on Parliament to amend the Constitution by article 368.
The next question that arises is whether there is any limi tation on the power of amendment as explained by us above.
835 Limitations may be of two kinds, namely, express or implied.
So far as express limitations are concerned, there are none such in ' article 368.
When it speaks of the "amendment of this Constitution it obviously and clearly refers to amendment of any provision thereof, including the provisions contained in Part III relating to fundamental rights.
Whether article 13(2) is an express limitation on the power of amendment will be considered by us law, but so far as, article 368 is concerned there are no limitation whatsoever in the matter of substance on the amending power and any provision of the Constitution, be it in Part III and any other Part, can be amended under article 368.
The next question is whether there are any implied limita tions on the power of amendment contained in article 368, and this Wags us to the argument that there are certain basic features of the Constitution which cannot be amended at all and there is an implied limitation on the power of amendment contained in article 5 68 so far as these basic features are concerned.
We may in this connection refer to the view prevailing amongst jurists in the United States of America as to whether there are any plied limitations on the power of amendment contained in article V of the U.S. Constitution.
There are two lines of thought in this matter in the United States.
Some jurists take the, view that there are certain implied limitations on the power to amend contained in article V of the U.S. Constitution.
These are said to be with respect to certain basic features, like, the republican character of Government, the federal structure etc.
On the other hand, it is that the more prevalent view amongst jurists in the United States is that there are no implied limitations on the scope of the amending power in article V of the U.S. Constitution.
Willis on the Constitutional Law of the United States of America (1936 Edition says that probably the correct position is that the amending power embraces everything; in other words there are no legal limitations whatever on the power of amendment, except what is expressly provided, in article V : (see discussion on pp. 1.22 to 127).
Even with respect to these express limitations, Munro in The Government of the United States (Fifth Edition) at p. 77 says that even these express limitations can be removed and one of the ways of doing so is "to remove, the exception by a preliminary amendment and thus clear the way for further action".
Besides, as a matter of fact there is no decision of the Supreme Court of the United States holding that there are implied limitations on the power of amendment contained in article V of the U.S. Constitution and all amendments so far made in the United States have been upheld by the Supreme Court there in the few cases that have been taken to it for testing the validity of the amendments.
836 We have given careful consideration to the argument that certain basic features of our Constitution cannot be amended under article 368 and have come to, the conclusion that no limitations can be and should be implied upon the power of amendment under article 368.
reason for coming to this conclusion is that if we were to accept that certain basic features of the Constitution cannot be amended under article 368, it will lead to the position that any amendment made to any Article of the Constitution would be liable to challenge before courts on the ground that it amounts to amendment of a basic feature.
Parliament would thus never be able to know what amendments it can make in the Constitution and what it cannot; for, till a complete catalogue of basic features of the Constitution is available, it would be impossible to make any amendment under article 368 with any certainty that it would be upheld by courts.
If such an implied limitation were to be put on the power of amendment contained in article 368, it would only be the courts which would have the power to decide what are basic features of the Constitution and then to declare whether a particular amendment is valid or not on the ground that it amends a particular basic feature or not.
The .result would be that every amendment made in the Constitution would provide a harvest of legal wrangles so much so that Parliament may never know what provisions can be amended and what cannot.
The power to amend being a constituent power cannot in our opinion for these reasons be held subject to any implied limitations thereon on the ground that certain basic features of the Constitution cannot be amended.
We fail to see why if there was any intention to make any part of the Constitution unamendable, the Constituent Assembly failed to indicate it expressly in article 368.
If, for example, the Constitution makers intended certain provisions in the Constitution, and Part III in particular, to be not amendable, we can see no reason why it was not so stated in article 368.
On the clear words of article 368 which provides for amendment of the Constitution which means any provision thereof,.
we cannot infer an implied limitation on the power of amendment of any provision of the Constitution ', be it basic or otherwise.
Our conclusion is that constituent power, like that contained,in article 368, can only be subject to express limitations and not to any implied limitations so,far as substance of the amendments are concerned and in the absence of anything in article 368 making any provision of the Constitution unamendable, it Must be held that the power to.
amend in article .3 68 reaches every provision of the Constitution and can be used to amend any provision thereof provided the procedure indicated, in article 368 is followed.
Copious references were made during the course of arguments to debates in Parliament and it is urged that it is open to this 837 Court to look into the debates in order to interpret article 368 to find out the intention of the Constitution makers.
We are of opinion that we cannot and should not look into the debates that took place in the Constituent Assembly to determine the interpretation of article 368 and the scope and extent of the provision contained therein.
It may be conceded that historical background and perhaps what was accepted or what was rejected by the Constituent Assembly while the Constitution was being framed, may be taken into account in finding out the scope and extent of article 368.
But we have no doubt that what was spoken in the debates in the Constituent Assembly cannot and should not be looked into in order to interpret article 368.
Craies on Statute Law (Sixth Edition) at p. 128 says that "it is not permissible in discussing the meaning of an obscure enactment, to refer to 'parliamentary history ' of a statute, in the sense of the debates which took place in Parliament when the statute was under consideration", and supports his view with reference to a large number of English cases.
The same is the view in Maxwell on Interpretation of Statutes, (11th Edition) p. 26.
Crawford on Statutory Construction (1940 Edition) at p. 340 says that resort may not be had to debates to ascertain legislative Intent though historical background in which the legislation came to be passed, can be taken into consideration .
In Administrator General of Bengal vs Prem Lai Mullick(1), the Privy Council held that "proceedings of the legislature cannot be referred to as legitimate aids to the construction of the Act in which they result.
" In Baxter vs Commissioner of Taxation(2), it was said that reference to historical facts can be made in order to interpret a statute.
There was however no reference to the debates in order to arrive at the meaning of a particular provision of the Constitution there in dispute.
In A. K. Gopalan vs the State of Madras(3), Kania C.J. re ferring to the debates and reports of the Drafting Committee of the Constituent Assembly in respect of the words of article 21 observed at p. I 10 that they might not be read to control the meaning of the Article.
In that case all that was accepted was that "due process of law" which was a term used in the.
U.S. Constitution, was not accepted for the purpose of article 21 which used the words 44 the procedure established by law".
Patanjali Sastri J. (at p. 202) also refused to look at the debates 'and particularly the speeches made in order to determine the meaning of article 21.
Fazl Ali, J. (at p. 158) was of opinion that the pro (1) (2) ; (3) ; Sup.
CI/67 8 838 ceedings and discuss ions In Constituent Assembly were not relevant for the purpose of construing the expressions used in article 2 1.
Again in The Automobile Transport (Rajasthan) Limited vs the State of Rajasthan(. '), this Court looked into the historical background but refused to look into the debates in order to determine the meaning of the provisions of the Constitution in dispute in that case.
We are therefore of opinion that it is not possible to read the speeches made in the Constituent Assembly in order to interpret An. 368 or to define its extent and scope and to determine what it,takes in and what it does not.
As to this historical facts. namely, what was accepted or what was avoided in the Constituent Assembly in connection with article 368, it is enough to say that we have not been able to find any help from the material relating to this.
There were proposals for restricting the power of amendment under article 368 and making fundamental rights immune from and there were counter proposals before the Constituent assembly for making the power, of amendment all embracing They were all either dropped or negatived and in the circumstanses are of no help in determining the interpretation of article 368 which must be interpreted on the words thereof as they finally found place in the Constitution, and on those words we have no doubt that there are no implied limitations of any kind on the power to amend given therein.
An argument is also raised that limitations on the power to amend the Constitution can be found in the preamble to the Constitution.
As to that we may refer only to in re: the Berubari Union and Exchange of Enclaves(2) with respect to the value of the preamble to the Constitution and its importance therein.
It was observed in that case unanimously by a Bench of nine judges that "although it may be correct to describe the preamble as a key to the mind of the Constitution makers, it form no part of the Constitution and cannot be regarded as the source of any substantive power which the body of the Constitution alone can confer on the Government , expressly or by implication.
This is equally true to prohibitions and limitations".
The Court there was considering whether the preamble could in any way limit the power of Parliament to cede any part of the national teritory and held that it was not correct to say that "the preamble in any way limit the power of Parliament to cede parts of the national territory".
On a parity, of reasoning we are of opinion that the preamble cannot prohibit or control in any way or impose any implied prohibitions or limitations oft Me power to amend the Constitution contained in article 368.
(1) [1963] 1 S.C.R. 491.
(2) 839 This brings us to the question whether the word "law" in article 13 (2) includes an amendment of the Constitution, and therefore there is an express provision in article 1 3 (2) which at least limits the power of amendment under article 3 68 to this extent that by such amendment fundamental rights guaranteed by Part 111 cannot be taken away or abridged.
We have already pointed out that in Sankari Prasad 's case(1) as well as Sajjan Singh 's case(1) it has already been held, in one case unanimously and in the other by majority, that the word "law" in article 13(2) does not include an amendment of the Constitution, and it is the correctness of this view which is being imputed before this Bench, Article 13 is in three parts.
The first part lays down that "all laws in force in the territory of India immediately before the commencement of this Constitution, insofar as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void".
Further all previous constitutional,provisions were repealed by article 395 which provided that " 'the Indian Independence Act, 1947, and the Government of India Act, 1935, together with all enactments amending or supplementing the latter Act, but not including the Abolition of Privy Council Jurisdiction Act, 1949, are hereby repealed." ' Thus it is clear that the word "law" in article 13(1) does not include any law in the nature of a constitutional provision, for no such law remained after the repeal 'in article 395.
Then comes the second part of article 13, which says that State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void".
The third part defines the word "law" for the purpose of article 13; the definition is inclusive and not exhaustive.
It is because of the definition in cl.
(3 ) of article 13 being inclusive that it is urged that the word "law" in article 13 (2) includes an amendment of the Constitution also.
Now we see no reason why if the word "law" in article 13(1) relating to past laws does not include any constitutional provision the word "law" in cl.
(2) would take in an amendment of the Constitution, for it would be reasonable to the word "law" 'in article 13(2) includes an amendment of the 13.
But apart from this consideration, we are of opinion that the word "law" in Art 13(2) could never have been intended to take in an amendment of the Constitution.
What article 13(2) means is that a law made under the constitutional provisions would, be tested on the anvil of Part III and if it takes away or abridges rights conferred by Part III it would be void to the extent of the contraventions.
There are many Articles in the Con stitution, which directly for making law in addition to Articles 245, 246, 248, etc.
and the three Lists and Aft.
13(2) (1) ; (2) ; 840 prohibits the State from making any law under these provisions.
We see no difficulty in the circumstances in holding that article 13 (2) when it talks of the State making any law, refers to the law made under the provisions contained in Ch.
I of Part XI of the Constitution beginning with article 245 and also other provisions already referred to earlier.
Article 246 provides that Parliament may make laws for the whole or any part of the territory of India and the legislature of a State may make laws for the whole or any part of the State.
Article 246(1) gives exclusive power to Parliament to make laws with respect to subjects enumerated in List 1.
Article 246(3) gives exclusive power to State legislatures to make laws with respect to List II.
Article 248(1) gives exclusive power to Parliament to make laws with respect to any matter not enumerated in the Concurrent List or the State List.
We are referring to these provisions merely to show that the various provisions in Chapter I of Part XI provide for making laws,and these laws are all laws which are made under the legislative power conferred on Parliament or on State legislatures under the Constitution.
Therefore when in article 13( ) it is said that the State shall not make any law (State there including Parliament and legislature of each State), its meaning could only take in laws made by Parliament and State legislatures under the powers conferred under Chapter I of Part XI.
and also other provisions already referred to earlier.
We have already held that the power to amend the Constitution is to be found in article 368 along with the procedure and that such power is not to be found in article 248 read item 97 of List I. Therefore an amendment of the Constitution is not an ordinary law made under the powers conferred under Chapter I of Part XI of the Constitution and cannot be subject to article 13(2) where the word "law" must be read as meaning law made under the ordinary legislative power.
We have already referred to a large number of Articles where Parliament is given the power to make law with respect to those Articles.
So far as this power of Parliament is concerned it is ordi nary legislative power and it will certainly be subject to article 13 (2).
But there can in our opinion be no doubt that when article 13(2) prohibits the State from making any law which takes away or abridges rights conferred by Part III, it is only referring to ordinary legislative power conferred on Parliament and legislatures of States and cannot halve any reference to the constituent power for amendment of the Constitution contained in article 368.
We have already pointed out that there are no implied limitative on the power to amend under article 368 and it is open to Parliament under that Article to amend any part of the Constitution, including Part M.
It is worth remembering that a whole Part XX is devoted by the Constitution makers to the subject of 841 amendment of the Constitution.
If it was their intention that Part III of the Constitution will not be liable to amendment by way of abridgement or abrogation under the amending power contained in article 368 we see no reason why an express provision to that effect was not made in article 368.
We cannot see what prevented the Constituent Assembly from making that clear by an express provision in article 368.
It is however said that it was not necessary to say so in article 368, because the provision was already made in article 13(2).
We are unable to accept this contention, for we have no doubt that article 13(2), when it refers to making of laws is only referring to the ordinary legislative power and not to the constituent power which results in amendment of the Con stitution.
In any case it seems to us somewhat contradictory that in article 368 power should have been given to amend any provision of the Constitution without any limitations but indirectly that power is limited by using words of doubtful import in article 13(2).
It is remarkable that in article 13(2) there is no express provision that amendment of the Constitution, under article 368, would be subject thereto.
It seems strange indeed that no express provision was made in Part XX in this matter and even in article 13(2) no express provision is made to this effect, and in both places the matter is left in a state of uncertainty.
It is also remarkable that in article 368 the word "law", which we find so often used in so many Articles of the Constitution is conspicuously avoided, and it is specifically provided that after the procedure has been gone through the Constitution shall stand amended in accordance with the terms of the Bill.
This language of article 368 is very significant and clearly makes a distinction between a constitutional Amendment and an ordinary law passed as an Amending Act.
The validity of a law has to be determined at the time when the Bill actually matures into an Act and not at the stage while it is still a Bill.
The provision in article 368 has the effect that when a Bill amending the Constitution receives the assent of the President, the Constitution stands amended in accordance with the terms of the Bill.
The Constitution thus stands amended in terms of the Bill if the Bill has been introduced, passed and assented to by the President in accordance with the procedure laid down in article 368 and not as a result of the Bill becoming an Amendment Act introducing amendment in the Constitution.
The provision that the Constitution shall stand amended in terms of the Bill was thus clearly intended to indicate that the amendment of the Constitution is not dependent on the Bill being treated as a law or an Act duly passed by Parliament.
Thus it is clear that by indicating that the Constitution is to stand amended in accordance with the terms of the Bill, article 368 clearly envisages that the power of amendment of the Constitution stands on an entirely different footing from an ordinary law made by Parliament in exercise of its legislative power.
842 If We keep in mind this difference, between constitutional amendment or constitutional law and an ordinary amending Act or law, it should not be difficult to hold that when Art 13 (2), speaks of the St ate making a law, it is referring to ordinary law made under the powers conferred by article 245 etc read with various Lists and various provisions of the Constitution where express provision to that effect has been made and is not referring to the amendment of the Constitution which is made under the 'constituent power.
Once it is held that the power to amend is found in article 368 and is not to be found in article 248 read with item 97 of List I, it must follow that the power to amend the Constitution under article 368 is a different power (namely, constituent power) and when article 13 (2) speaks of making 'law, it can only refer to making ordinary law, particularly when we compare the words of article 13 (2) (namely, the State shall not make any law) and the words of articles 245, 248, and 250 (which all speak of Parliament making law, State legislatures making law, and so on).
Lastly, as the power to amend is in article 368 and on the words, as they stand in that Article, that power is unfettered and includes the power to amend Part III, it is strange that that power should be limited by putting an interpretation on the word "law" in article 13(2), which would include constitutional law also.
There is nothing to suggest this even in the inclusive definition of the words "law" and "laws in force" in article 13(3).
Besides, it is conceded on behalf of the petitioners that article 368 gives power to amend Part 111, but that power is only to amend one way, namely, towards enlargement of the rights contained therein, and not the other way, namely, for, abridging or taking away the rights contained therein.
W. , must say that it would require a very clear provision in the Constitution to read the power to amend the Constitution relating to Part III in this manner.
We cannot find that clear provision in article 1 3 (2).
We repeat that when the Constituent Assembly was taking the trouble of providing a whole Part for amendment of the Constitution and when the words in article 368 clearly give the power to amend the Constitution and are subject to no implied limitations and contain no express limitations, it is strange indeed that it should have omitted to provide in that very Article that Part III is not liable to amendment thereunder.
In any case if the power of amendment conferred by the words of article 368 is unfettered, we must avoid any inconsistency between that power and the provision contained in article 13 (2).
We avoid that in keeping with the unfettered power in article 368 by reading the word "law" in article 13 (2) as meaning law passed under: ordinary legislative power and thus not including an amendment of the Constitution therein.
The words in article
II (2) are in our opinion not specific and clear ' enough to take in 843 the power of amendment under article 368 and must be confined only to the power of ordinary law making contained in articles 245 etc., and other provisions of the Constitution read with various Lists.
We have therefore no hesitation in agreeing with the view taken in Sankari Prasad 's case(1) which was upheld by the majority in Sajjan Singh 's case(2).
The next argument is that action under the proviso to article 368 is necessary as the Seventeenth Amendment affects the power of the High Court contained in article 226.
It is said that by including various Acts in the Ninth Schedule and making them immune from challenge under the provisions contained in Part III, the power of the High Court under article 226 is affected inasmuch as the High Court cannot strike down any of the Acts included in the Ninth Schedule on the ground that they take away or abridge the rights conferred by Part III.
So it is said that there has been a change in article 226 and it was necessary that the Seventeenth Amendment should have been ratified by more than half the States under the proviso.
A similar argument was raised in Sankari Prasad 's case(1) and was turned down unanimously.
The same argument was again raised in Sajjan Singh 's case(2) and was also turned down.
Now ratification is required under the proviso if the amendment seeks to make any change in various provisions mentioned therein and one such provision is article 226.
The question therefore is whether the Seventeenth Amendment makes any change in article 226 and whether this change has to be a direct change in the words of article 226 or whether merely because there may be some effect by the Seventeenth Amendment on the, content of the power in article 226 it will amount to change in article 226.
We are of opinion that when the proviso lays down that there must be ratification when there is any change in the entrenched provisions, including article 226, it means that there must be actual change in the terms of the provision concerned.
If there is no actual change directly in the entrenched provision, no ratification is required, even if any amendment of any other provision of the Constitution may have some effect indirectly on the entrenched provisions mentioned in the proviso.
But it is urged that there may be such a change in some other provision as would seriously affect an entrenched provision, and in such a case ratification should be necessary.
This argument was also dealt with 'in the majority judgment in Sajjan Singh 's case(2) where the doctrine of pith and substance was applied and it was held that where the amendment in any other Article so affects the entrenched Article as to amount to an amendment therein, then ratification may be necessary, even though the entrenched Article may not be directly touched.
Perhaps the use of the doctrine of pith and substance (1) ; (2) [1965] 1 S.C.P. 933.
844 in such a case is not quite apt.
But what was meant in Sajjan Singh 's case(1) was that if there is such an amendment of an unentrenched Article that it will directly affect an entrenched Article and necessitate a change therein, then recourse must be had to ratification under the proviso.
We may illustrate this by two examples.
Article 226 lays down inter alia that the High Court shall have power to issue writs for the enforcement of any of the rights conferred by Part III and for any other purpose.
Now assume that Part III is completely deleted by amendment of the Constitution.
If that takes place, it will necessitate an amendment of article 226 also and deletion therefrom of the words "for the enforcement of any of the rights conferred by Part III".
We have no doubt that if such a contingency ever happens and Part III is completely deleted, Parliament will amend article 226 also and that will necessitate ratification under the proviso.
But suppose Parliament merely deletes Part III and does not make the necessary consequential amendment in article 226, it can then be said that deletion of Part III necessitates change in article 226 also, and therefore in such a case ratification is necessary, even though Parliament may not have in fact provided for amendment of Art 226.
Take another example.
Article 54 is an entrenched Article and provides for the election of the President.
So is article 55 which provides for the manner of election.
Article 52 which lays down that there shall be a President is on the other hand not an entrenched Article.
It is said that article 52 may be altered and something else may be substituted in its place and that would not require ratification in terms as article 52 is not among the entrenched Articles.
But we are of opinion that if Parliament amends article 52, it is bound to make consequential amendments in articles 54 and 55 which deal with the election of the President and the manner thereof and if it is so the entire amendment must be submitted for ratification.
But suppose Parliament merely amends article 52 and makes no change in articles 54 and 55 (a supposition which is impossible to visualise).
In that case it would in our opinion be right to hold that article 52 could not be altered by abolition of the office of the President without necessi tating a change in articles 54 and 55 and in such a case if article 52 alone is altered by Parliament, to abolish the office of President, it will require ratification.
These two examples will show where alteration or deletion of an unentrenched Article would necessitate amendment of an entrenched Article, and in such a case if Parliament takes the incredible course of amending only the unentrenched Article and not amending the entrenched Article, courts can say that ratifi (1) ; 845 cation is necessary even for amending the unentrenched Article, for it directly necessitates, a change in an entrenched Article.
But short of that we are of opinion that merely because there is some effect indirectly on an entrenched Article by amendment of an unentrenched Article it is not necessary that there should be ratification in such circumstances also.
Besides, let us consider what would happen if the argument on behalf of the petitioners is accepted that ratification is necessary whenever there is even indirect effect on an entrenched Article by amending an unentrenched Article.
Take the case of article 226 itself.
It gives power to the High Court not only to issue writs for the enforcement of fundamental rights but to issue them for any other purpose.
Writs have thus been issued by High Courts for enforcing other rights conferred by ordinary laws as well as under other provisions of the Constitution, like articles 301 and 311.
On this argument if any change is made in articles 301 and 311 there is bound to be an effect on article 216 and therefore ratification would be necessary, even though both articles 301 and 311 are not entrenched in the proviso.
Further, take an ordinary law which confers certain rights and it is amended and those rights are taken away.
Article 226 would be clearly affected.
Before the amendment those rights may be enforced through article 226 while after the amendment the rights having disappeared there can be no enforcement thereof.
Therefore, on this argument even if there is amendment of ordinary law there would be an effect on article 226 and it must therefore be amended every time even when ordinary law is changed and the entire procedure under article 368 must be gone through including ratification under the proviso.
It is however said that when ordinary law is amended, rights disappear and therefore there is no question of enforcement thereof; if that is correct with respect to ordinary law, it is in our opinion equally correct with respect to the amendment of an unentrenched provision of the Constitution.
The answer given in Sankari Prasad 's case(1) to this argument was that article 226 remained just the same as it was before, and only a certain class of cases had been excluded from the purview of Part III and the courts could no longer interfere, not because their powers were curtailed in any manner or to any extent, but because there would be no occasion thereafter for the exercise of their power in such cases.
We respectfully agree with these observations and are of opinion that merely because there is some indirect effect on article 226 it was not necessary that the Seventeenth Amendment should have been ratified by more than one half of the States.
It is only in the extreme case, the examples of which we have given above, that an amendment of an unentrenched Article without amendment of entrenched Article (1) ; 846 might be had for want of ratification, and this is what was intended by the majority judgment in Sajjan Singh 's case(1), when it applied the doctrine of pith and substance in these circumstances.
The argument that ratification is necessary as article 226 is indirectly affected has therefore no force and must be rejected.
This is equally true with respect to the power of this Court under articles 132 and 136.
Then it is urged that article 245 is enlarged by the Seventeenth Amendment inasmuch as State legislatures and Parliament were freed from the control of Part III in the matter of certain laws affecting, for example.
ryotwari lands, and therefore as article 245 is an entrenched Article there should have been ratification under the proviso.
This argument in our opinion is of the same type as the argument with respect to the effect on article 226 and our answer is the same, namely, that there is no direct effect on article 245 by the amendment and the indirect effect, if. any, does not require that there should have been ratification in the present case.
It is then urged that ratification is necessary as article 31 B deals with State legislation and in any case Parliament cannot make, any law with respect to Acts which were put in the Ninth Schedule and therefore Parliament could not amend the Constitution in the manner in which it was done by making additions in the Ninth Schedule, both for want of ratification and for want of legislative competence.
The answer to this argument was given in Sahkari Prasad 's case(2) and it was observed there that "Article 31 A and 31 B really seek to save a certain class of laws and certain specified laws already passed from the combined operation of article 13 read with other relevant Articles of Part III.
The new Articles being thus essentially amendments of the Con stitution, Parliament had the power of enacting them.
That laws thus saved relate to matters covered by List II does not in any way affect the position.
It was said that Parliament could not validate a law which it had no power to enact.
The proposition holds good where.
the validity of the impugned provision turns on whether the subject matter, falls within or without the jurisdiction of the legislature which passed it.
But to make a law which contravenes the Constitution, constitutionally valid is a matter of constitutional amendment and as such it falls within the exclusive power of Parliament." (1) ; (2) ; 847 We respectfully agree with these observations.
They succinctly put the legal and constitutional position with respect to the 'validity of Arts, 3 1 A and 3 1 B.
It seems to us that article 3 1 B in particular is a legislative drafting device which compendiously puts in one place amendments which would otherwise have been added to the Constitution under various Articles in Part III.
The laws in the Ninth Schedule have by the device of article 3 1 B been excepted from the various provisions in Part ]III, which affected them and this exception could only be made by Parliament.
The infirmity in the Arts put in the Ninth Schedule was apprehended to be a constitutional infirmity on the ground that those laws might take away or abridge rights conferred by Part HI.
Such a constitutional infirmity could not be cured by State legislatures in any way and could only be cured by Parliament by constitutional amendment.
What Parliament in fact did by including various Acts in the Ninth Schedule read with article 3 1 B was to amend the various provisions in Part III, which affected these Acts by making them an exception to those provisions in Part III.
This could only be done by Parliament under the constituent power it had under article 368 and there was no question of the application of the proviso in such a case, for Parliament was amending Part III only with respect to these laws.
The laws had already been passed by State legislatures and it was their constitutional infirmity, if any, which was being cured by the device adopted in article 3 1 B read with the Ninth Schedule, the amendment 'being only of the relevant provisions of Part III which was compendiously put in one place in article 3 1 B. Parliament could alone do it under article 368 and there was no necessity for any ratification under the proviso, for amendment of Part III is not entrenched in the proviso.
Nor is there any force in the argument that Parliament could ' not validate those laws by curing the constitutional infirmity because they dealt with land which is in List 11 of the Seventh Schedule to the Constitution over which State Legislatures have exclusive legislative power.
The laws had already been passed by State legislatures under their exclusive powers; what has been done by the Seventeenth Amendment is to cure the constitutional ' infirmity, if any, in these laws in relation to Part III.
That could only be done by Parliament and in so doing Parliament was not encroaching on the exclusive legislative power of the State.
The States had already passed the laws and all that was done by the Seventeenth Amendment was to cure any constitutional infirmity in the laws by including them in the Ninth Schedule read with article 31 B. We must therefore reject the argument that the Seventeenth Amendment required ratification because laws put in the Ninth Schedule were State law ,.
We must equally reject the argument that as these laws dealt with land, which is in the 848 exclusive legislative power of State legislature, Parliament could not cure the constitutional infirmity, if any, in these laws by putting them in the Ninth Schedule.
We now come to what may be called the argument of fear.
It is urged that if article 368 confers complete power to amend each and every provision of the Constitution as we have held that it does frightful consequences will follow on such an interpretation.
If Parliament is clothed with such a power to amend the Constitution it may proceed to do away with fundamental rights altogether, it may abolish elected legislatures, it may change the present form of Government, it may do away with the federal structure and create a unitary state instead, and so on.
It is therefore argued that we should give a limited interpretation to the power of amendment contained in article 368, as otherwise we shall be giving power to Parliament to destroy the Constitution itself.
This argument is really a political argument and cannot be taken into account in interpreting article 368 when its meaning to our mind is clear.
But as the argument was urged with a good deal of force on behalf of the petitioners and was met with equal force on behalf of the Union and the States, we propose to deal with it briefly.
Now, if this argument means that Parliament may abuse its power of amendment conferred by article 368, all that need be said in reply is that mere possibility of abuse cannot result in courts withholding the power if the Constitution grants it.
It is well settled so far as ordinary laws are concerned that mere possibility of abuse will not induce courts to hold that the power is not there, if the law is valid and its terms clearly confer the power.
The same principle in our opinion applies to the Constitution.
If the Constitution gives a certain power and its terms are clear, there is no reason why that power should be withheld simply because of possibility of abuse.
If we may say so, possibility of abuse of any power granted to any authority is always there; and if possibility of abuse is a reason for withholding the power, no power whatever can ever be conferred on any authority, be it "executive, legislative or even judicial.
Therefore, the so called fear of frightful consequences, which has been urged on behalf of the Petitioners (if we hold, as we do, that the power to amend the Constitution is unfettered by any implied limitations), is no ground for withholding the power, for we have no reason to suppose that Parliament on whom such power is ,conferred will abuse it.
Further even if it abuses the power of constitutional amendment under article 368 the check in such circumstances is not in courts but is in the people who elect members of Parliament.
The argument for giving a limited 849 meaning to article 368 because of possibility of abuse must therefore be rejected.
The other aspect of this argument of fear is that we should not make the Constitution too flexible so that it may be open to the requisite majority with the requisite ratification to make changes too frequently in the Constitution.
It is said that the Constitution is an organic document for the governance of the country and it is expected to endure and give stability to the institution which it provides.
That is undoubtedly so and this is.
very true of a written federal Constitution.
But a perusal of.
various Constitutions of the world shows that there are usually provisions for amendment of the Constitution in the Constitution itself.
This power to amend a Constitution may be rigid or flexible in varying degrees.
Jurists have felt that where the power to amend the Constitution is made too rigid and the people outgrow a particular Constitution and feel that it should be amended but cannot do so because of the rigidity of the Constitution, they break the Constitution, and this breaking is more often than not by violent revolution.
It is admitted by even those writers on the United States Constitution who are of the view that there are certain basic features which cannot be amended and who would thus make the U. section Constitution even more rigid ' than it is; that howsoever rigid the Constitution may be its rigidity will not stop the people from breaking it if they have outgrown it and this breaking is, generally speaking, by violent revolution.
So, making our Constitution rigid by putting the interpretation which the petitioners want us to put on it will not stop the frightfulness which is conjured up before us on behalf of the petitioners.
If anything, an interpretation which will make our Constitution rigid in the manner in which the petitioner want the amending power in article 368 to be interpreted will make a violent revolution, followed by frightfulness of which the petitioners are afraid, a nearer possibility than an interpretation which will make it flexible.
It is clear that our Constitution makers wanted to avoid ' making the Constitution too rigid.
It is equally clear that they did not want to make an amendment of the Constitution too easy.
They preferred an intermediate course which would make,the Constitution flexible and would still not allow it to be amended too easily.
That is why article 368 provides for special majorities of the two Houses for the purpose of amendment of the Constitution.
Besides it also provides for ratification by more than half the States in case of entrenched Provisions in the proviso.
Subject to these limitations, the Constitution has been, made moderately flexible to allow any change when the people feel that change is necessary.
The necessity for special majorities 850 in each House separately and, the necessity for, ratification by more than half the States in certain cases appear to us to be sufficient safeguards to prevent too easy change in the Constitution without making it too rigid.
But it is said that, in the last sixteen Years, a large number of amendments have been made to the constitution and that shows that the power to amend is much too easy and should be restricted by judicial interpretation.
Now, judicial interpretation cannot restrict the power on the basis of a political argument.
It has to interpret the Constitution and finds it on the basis of well known,canons of construction,and on the terms of article 368 in particular.
If on those terms it is clear we think it is that power to amend is subject to no limitations except those to be expressly found in the Constitution, courts must give effect to that.
The fact that 'm the last sixteen years a large number of amendments could be made and have been made is in our opinion due to the accident that one party has been returned by electors in sufficient strength to be able to command the special majorities which are required under article 368, not only at the Centre but also in all the Stites.
It ' is because of this circumstance that we have had so many amendments in the course of the last sixteen years.
But that in our opinion is no ground for limiting the clear words of article 368.
The power of amendment contained in a written federal Con stitution is a safety valve which to a large extent provides for stable growth and makes violent revolution more or less unnecessary.
It has been said by text book writers that the power of amendment, though it allows for change, also makes a Constitution long lived and stable and serves the needs of the people from time to time.
If this power to amend is made too rigid it loses its value as a safety valve.
The more rigid a Constitution the more likely it is that people will outgrow it and throw it over board violently.
On the other hand, if the Constitution is flexible (though it may not be made too easy to modify it) the power of amendment provides for stability of the Constitution itself and for ordered progress of the nation.
If therefore there had to be a choice between giving an interpretation to article 368 which would make our Constitution rigid and giving an interpretation which would make it flexible, we would prefer to make it flexible, so that it may endure for a long period of time and may, if necessary, be amended from time to time in accordance with the progress in the ideas of the people for whom it is meant.
But we feel that it is not necessary to go to this extent, for that would be entering into the field of politics.
As we see the terms of article 368, we are clearly Df opinion that the Constitutionmakers wanted to make our Constitution reasonably flexible and ,.that the interpretation that we have given to article 368 is in 851 consonance with the terms thereof and the intention of those who made it.
We therefore reject the argument of fear altogether.
This brings us to the argument of stare decisis raised on behalf of the Union of India and the States.
The argument is put thus.
After the decision of the Patna High Court invalidating the Bihar Land Reforms Act, 1950, Parliament passed the First Amendment to the Constitution.
That Amendment was challenged in this Court by a number of writ petitions and was upheld in Sankari Prasad 's case( ) in 1951.
That case practically stood unchallenged till Sajjan Singh 's case(2) in 1964 after the Seventeenth Amendment was passed.
Thus in the course of these fifteen years or so a large number of State Acts were passed on the basis of the First Amendment by which in particular articles 31 A and 31 B were introduced in the Constitution.
It is said that though Sankari Prasad 's case (1) has stood for less than 15 years there have been so many laws dealing with agrarian reforms passed on the basis of the First Amendment which was upheld by this Court that the short period for which that case has stood should not stand in the way of this Court acting an the principle of, stare decisis.
The reason for this is that an agrarian revolution, has taken place all over the country after the First Amendment by State laws passed on the faith of the decision of this Court in Sankari Prasad 's case(1).
This agrarian revolution has led to millions of acres of land having changed hands and millions of now titles having been created.
So it is urged that the un animous decision in Sankari Prasad 's case(2), which was challenged when the Seventeenth Amendment was passed and was upheld by majority in Sajjan Singh 's case(2) should not now be disturbed as its disturbance would create chaos in the country, particularly in the agrarian sector which constitutes the vast majority of the population in this country.
We are of opinion that there is force in this argument .
Though the period for which Sankari Prasad 's case(1) has stood unchallenged is not long, the effects which have followed in, the passing of State laws on the faith of that decision ', are so overwhelming that we should not disturb the decision in that case.
It is not disputed that millions of acres of land have changed hands and millions of new titles in agricultural lands have been created and the State laws dealing with Agricultural land which have been passed in the course of the last fifteen years after the decision in Samkari Prasad 's case(1) have brought about an agrarian revolution.
Agricultural population constitutes a vast majority of the population in this country.
In these circumstances it would in our opinion be wrong to hold now that (1) ; (2) ; 852 Sankari Prasad 's case (1) was not correctly decided and thus disturb all that has been done during the last fifteen years and create chaos into the lives of millions.
of our countrymen who have benefited by these laws relating, to agrarian reforms.
We would in the circumstances accept the argument on behalf of the Union of India and the States that this is the fittest possible case in which the principle of stare decisis should be applied.
On this basis also, apart from our view that Sankari Prasad 's case (1) was in fact rightly decided, we would not interfere with that decision now.
But it is urged that instead of following the principle of stare decisis which would make die decision in Sankari Prasad 's case(1) good for all times.
, we should follow the doctrine of prospective over ruling, which has been evolved by some United States courts so that everything that has been done up to now, including the Seventeenth Amendment would be held good but in future it would not be open to Parliament to amend Part III by taking away or abridging any of the rights conferred thereby and, if the argument as to implied limitations on the power to amend is accepted, further limit the power of Parliament to amend what may be called basic features of the Constitution.
We must say that we are not prepared to accept the doctrine of prospective over ruling.
We do not know whether this doctrine which it is urged should be applied to constitutional amendment would also be applied to amendments of ordinary laws.
We find it difficult to visualise what would be the effect of this doctrine if it is applied to amendment of ordinary laws.
We have so far been following in this country the well known doctrine that courts declare law and that a declaration made by a court is the law of the land and takes effect from the date the law came into force.
We would on principle be loath to change that well known doctrine and supersede it by the doctrine of prospective over ruling.
Further it seems to us that in view of the provisions of article 13(2) it would be impossible to apply the doctrine of prospective over ruling in our country, particularly where a law infringes fundamental rights.
Article 13(2) lays down that all.
laws taking away or abridging fundamental rights would be void to the extent of contravention.
It has been held by this Court in Deep Chand vs The State of Uttar Pradesh (2) that a law made after the Constitution came into force which infringes fundamental rights is a stillborn law and that the prohibition contained in article 13(2) went to the root of the State power of legislation and any law made in contravention of that provision was void ab initio.
This case has been followed in Mahendra Lal Jaini vs The State of Uttar Pradesh(3).
In the face of these (1) ; (2) [1959] Supp. 2 S.C.R. 8.
(3) [1963] Supp. 1.
S.C.R. 912.
853 decisions it is impossible to apply the principle of prospective over ruling in this country so far as ordinary laws are concerned.
Further, if the word "law" in article 13(2) includes an amendment of the Constitution, the same principle will apply, for that amendment would be stillborn if it infringes any fundamental rights contained in Part III.
In these circumstances, it would be impossible to apply the principle of prospective over ruling to constitutional amendments also.
On the other hand, if the word "law" in article 13(2) does not include an amendment of the Constitution, then there is no necessity of applying the principle of prospective over ruling, for in that case unless some limitations on the power of amendment of the Constitution are implied the amendment under article 368 would not be liable to be tested under article 13(2).
We are therefore unable to apply the doctrine of prospective over ruling in the circumstances.
Further as we are of opinion that this is the fittest possible case in which the prin ciple of stare decisis applies,we must uphold Sankari Prasad 's case (1) for this reason also.
Lastly we would refer to the following observations in Sajjan Singh 's case(2) (at pp.
947 48) with respect to over ruling earlier judgments of this Court and specially those which are unanimious like Sankari Prasad 's case(1): "It is true that the Constitution does not place any restriction on our powers to review our earlier decisions or even to depart from them and there can be no doubt that in matters relating to the decision of constitutional points which have a significant impact on the fundamental rights of citizens, we would be prepared to. ' review our earlier decisions in the interest of public good. . .
Even so, the normal principle that "judgments pronounced by this Court would be final, cannot be ignored and unless considerations of a substantial and compelling character make it necessary to.
do so, we should be slow to doubt the correctness of previous decisions.or to depart from them.
"It is universally recognised that in regard to a large number of constitutional problems which are brought before this Court for its decision, complex and difficult questions arise and on many of such questions two views are possible.
Therefore, if one view has been taken.
by this Court after mature deliberation, the fact that another Bench is inclined to take a different view may not justify the Court in reconsidering the earlier decision or in departing from, it. . .
Even so, the Court should be re (1) (1952] S.C.R. 89.
(2) [1965] 1 S.C.R. 933.
p. CI/67 9 854 luctant to accede to the suggestion that its earlier decisions should be light heartedly reviewed and departed from.
In such a case the test should be: is it absolutely necessary and essential that the question already decided should be reopened The answer to this question would depend on the nature of the infirmity alleged in the earlier decision, its impact on public good, and the validity and compelling character of the considerations urged in support of the contrary view.
If the said decision has been followed in a large number of cases, that again is a factor which must be taken into account.
" A similar view was taken in the Keshav Mills Company Limited vs Commissioner of Income tax,(1) where it was observed that ". before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified.
" These principles were applied in Sajjan Singh 's case(2) and it was observed that if Sankari Prasad 's case(3) were to be overruled, "it would lead to the inevitable consequence that the amendments made in the Constitution both in 1951 and 1955 would be rendered invalid and a large number of decisions dealing with the validity of the Acts included in the Ninth Schedule which have been pronounced by, different High Courts ever since the decision of this Court in Sankari Prasad 's case(3) was declared, would also be exposed.
to serious jeopardy.
" The majority in that case therefore was not in favour of reviewing Sankari Prasad 's case(".) even so in View of the argument raised and the importance of the question it considered the arguments against that decision and came to the conclusion its that that case was rightly decided We may add that besides so many cases in the High Courts there have been a large number of cases in this Court to which it is unnecessary to refer where on the faith of various amendments made in the Constitution, particularly the First, the Fourth and the Sixteenth, amending fundamental rights, this Court has upheld the, validity of various Acts on the basis of these amendments.
Further we would be very reluctant to over rule the unanimous decision in Sankari Prasad 's case.(3) or any other unanimous decision by the slender majority of one in a larger Bench constituted for the purpose.
We say this with great respect and would hold that apart 'from the principle of stare decisis we should not say that the (1) ; (2) ; (3) ; 855 unanimous judgment in Sankari Prasad 's case(,) was wrongly decided by such a slender majority in this Special Bench.
We therefore hold that Sankari Prasad 's cases(1) was correctly decided and that the majority,in Sajjan Singh 's case(2) WAS Correct in following that decision.
We would follow the decision in Sankari Prasad 's case(1) even now as in our opinion it was correctly decided. ' Following that decision we hold that the Seventeenth Amendment is good.
In view of this decision it is unnecessary to refer to other arguments raised with respect to the two petitions challenging the Mysore Land Reforms Act.
In our view therefore all the three petitions should fail and we would dismiss them.
In the circumstances we would pass no order as to costs.
Hidayatulla.
J In these three writ petitions, the facts of which appear in the two judgment just delivered, the validity of the Punjab Security of Land Tenures Act, 1953 and the Mysore Land Reforms Act, 1953, is principally involved. ' Since these Acts are protected by the Constitution (Seventeenth Amendment) Act, 1964, the validity of the constitutional amendment is also questioned.
Therefore, a much larger field must be traversed because of the claim of the State that no part of the Constitution from the Preamble to the Ninth Schedule, is beyond the provision for amendment contained in article 368.
The article, forms the Twentieth Part of the Constitution and is said to be a code by itself in which reposes a sovereign power, transcending anything elsewhere in the Constitution.
The State submits that (except as stated in the article) there are no limitations on the amending power and denies that there are any implied restrictions.
It claims, therefore, that an amendment of the Constitution Or of any of its part can never be a justiciable issue if the procedure for amendment has been duly followed.
In this claim no exception is made the Preamble, the Fundamental Rights, the guaranteed remedy to uphold them all of them severally and together are said to be capable of being Partially or wholly abrogated by an amendment.
Looked at from, this Point of view the Seven teenth Amendment Act not only 'must be valid but also beyond the Power of the courts to question.
The petitioners, on the other hand, contend that this is to deny the real importance and inviolability of the Fundamental Rights which the Constitution itself, paramount even to article, 368 consideration. ' before we can Acts are valid or not.
(1) ; (2) ; 856 The same questions were before this Court on two earlier occasions.
They arose for the first time immediately after the Constitution (First Amendment) Act, 1951 was adopted and became the subject of a decision of this Court reported in Sri Sankari Prasad Singh Deo vs Union of India(1).
There Patanjali Sastri J. speaking for Harilal Kania C.J., Mukherjea, Das and Chandrasekhara Aiyar, JJ.and himself upholds the First Amendment on the grounds that the power conferred by Part XX is constituent, paramount and sovereign and is, therefore, not subject to article 13(2) which prohibits the making of ordinary laws tending to abridge or take away Fundamental Rights.
The questions were again before the Court in sajjan Singh c. State of Rajasthan(2) when the Seventeenth Amendment was impugned.
The authority of Sankari Prasad 's case(1) was the ministry ofof the argument in support of the validity of the new amendment.
This time the Court was not unanimous although the Court as aas a whole did not strike down the Act.
Three opinions weredelivered by Gajendragadkar, C.J. on behalf of Wanchoo and Raghubar Dayal, JJ.
and himself, by Mudholkar, J. and by me.
I found the reasoning in Sankari Prasad 's case(1) to be unaccept able, although for reasons which I shall give, I refrained from expressing a final opinion.
Mudholkar, J. in his opinion supported me with additional and forceful reasons but he also did not express himself finally on the broader question.
I closed my opinion with the following observations : "I would require stronger reasons than those given in Sankari Prasad 's case(1) to make me accept the view that Fundamental Rights were not really fundamental but were intended to be within the powers of amendment in common with the other parts of the Constitution and without the concurrence of the States.
No doubt article 19 by clauses numbered 2 to 6 allows a curtailment of rights in the public interest.
Ibis shows that Part III is not static.
It Visualises changes and progress but at the same time it preserves the individual rights.
There is hardly any measure of reform which cannot be introduced reasonably, the guarantee of individual liberty notwithstanding.
Even the agrarian reforms could have been partly carried out without Article 31 A and 31 B but they would have cost more to the public exchequer. 'the rights of society are made paramount and they ire placed above those of the individual.
This is as it should be.
But restricting the Fundamental Rights by resort to cls.
2 to 6 of Mt. 19 is (1) ; (2) ; 857 one thing and removing the rights from the Constitution or debilitating them by an amendment is quite another.
This is the implication of Sankari Prasad 's case(1).
It is true that such things would never be, but one is concerned to know if such a doing would be possible." "The Constitution gives so many assurances in Part III that it would be difficult to think that they were the playthings of a special majority.
To hold this would prima facie that the most solemn parts of our Constitution stand on the same footing as any other provision and even on a less firm ground than one on which the articles mentioned in the proviso stand.
The anomaly that article 226 should be somewhat protected but not article 32 must give us pause.
Article 32 does not erect a shield against private conduct but against state conduct including the legislatures (See article 12).
Can the legislature take away this shield ? Perhaps by adopting a liberal construction of article 368 one can say that.
But I am not inclined to play a grammarian 's role.
As at present advised I can only say that the power to make amendments ought not ordinarily to be a means of escape from absolute constitutional restrictions.
" My opposition (lest one misunderstands its veridical charac ter) appears to be cautious and even timid but this was because it was attended by an uneasy feeling that I might have missed some immanent truth beyond what was said in Sankari Prasad 's case(1).
The arguments then were extremely brief.
After hearing full arguments in this case, which have not added to the reasoning of the earlier cases, I am not satisfied that the reasons are cogent enough for me to accept them.
I say it with respect that I felt then, as I do so even more strongly now, that in the two earlier cases, the result was reached by a mechanical juris prudence in which harmonious construction was taken to mean that unless article 368 itself made an exception the existence of any other provision indicative of an implied limitation on the amending power, could not be considered.
This was really to refuse to consider any argument which did not square with the a priori view of the omnicompetence of article 368.
Such reasoning appears to me to be a kind of doctrinaire conceptualism based on an and textual approach supplemented by one concept that an amendment of the Constitution is not an exercise of legislative (1) ; 858 power but of constituent Dower and, therefore, an amendment of the Constitution is not law at all as contemplated by article 13(2).
I. am reminded of the.
words of.
Justice Holmes that "we ,must think things and not words".
The true principle is that if there are two provisions in the Constitution which seem to be hostile, juridical hermeneutics requires the Court to interpret them by combining them and not by destroying one with the aid of the other.
No part in a Constitution is superior to another part unless the Constitution itself says so and there is no accession 'of strength to any provision by calling it a code.
Portalis, the great.
French Jurist .(who helped in the making of the Code Napole on) supplied the correct principle when he said that it is the context of the legal provisions which serves to illustrate the meaning.
of the different parts, so that among them and between them there should be correspondence and harmony.
We have two provisions to reconcile.
Article 368 which says that the Constitution may be amended by, following this and this.
procedure, and article 13(2) which says, the State shall not make any law which takes away or abridges the rights conferred by Part III and that any law made in contravention of the clause shall, to the extent of the contravention, be void.
The question, therefore, is : does this create any limitation upon the amending process ? On the answer to this question depends the solution of all the problems in this case.
It is an error to view our Constitution as if it were a mere organisational document by which the people established the atructure and the mechanism of their Government.
Our Constitution is intended to be much more because it aims at being a social document In which the relationship of society to the indiVidual and of Government to both and the rights of the minorities and the backward classes are clearly laid down.
This social document is headed by a Preamble* which epitomizes the principles on which the Government is intended to function and these principles are later expanded into Fundamental Rights in Part III and the Directive Principles of Policy in Part TV.
The former 'are protected but the latter are not.
The former represent the "PREAMBLE WE THE PEOPLE OF INDIA having solemnly Resolved to .constitute
India into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure all Its citizens: JUSTICE, social, economic and political; EQUALITY of status and of opportunity; and to promote among them.all FRATERNITY assuring the, dignity of the individual and.the unity of Nation: IN OUR CONSTITUENT ASSEMBLY this twenty sixth day of November,1949,do HEREBY ADOPT,ENACT AND GIVE TO OURSELVES THIS CONSTffUTION.
" 859 limits of State action and the latter are the obligations and the duties of the Government as a good and social Government.
Why was it necessary to have the Fundamental Rights at all and make them justiciable ? As we seem to be forgetting our own history so soon let me say that the answer lies there the Nationalist Movement and the birth of the Indian National Congm in 1885 were the direct result of the discriminatory treatment of the Indians in their own country.
The demand for the guarantee of Fundamental Rights had unfortunately to be made.
then to a foreign ruler and it appeared in the Constitution of India Bill framed by the Indian National Congress ten years later.
All that is valuable to an Individual in civilized society, including free speech, imprisonment only by a competent authority, free law education, etc. were claimed therein.
Resolutions of the Congress since then reiterated this demand and the securing of Fundamental Rights in any future Constitution became one of the articles of faith.
To cut the narration short, the main steps may only be mentioned.
Mrs. Besant 's Commonwealth of India Bill 1925 with its seven fundamental rights (the precursor of article 19), the Madras Congress Resolution of 1927 "a constitution on the basis of declaration of rights" the Nehru Report it is obviour, that our first care should be to have the Fundamental Rights guaranteed in a manner which will not permit their withdrawal in any circumstancees , the draft article in the Nehru Constitution "No person shall be deprived of his liberty, nor shall his dwelling or property be entered, requisitioned or confiscated save in accordance with law" , the Independence Resolution of 26th January, 1930 We believe that it is the inalienable right of the Indian people, as of any other people, to have freedom and to enjoy the fruits of their toil and have the necessities of life, so that they may have full opportunities of growth" the Karachi Resolution on Fundamental Rights, Economic and Social Change (1931), the Sapru Report (1945) which for the first time distinguished between justiciable and non ,justiciable rights, the Suggestion of the Cabinet Mission for the constitution of an Advisory Committee on Fundamental and Minority Rights, and, lastly the Committee on Fundamental Rights of the Constituent Assembly, are just a few of the steps to be remembered.
The Fundamental Rights and the Directive Principles were the result.
Fundamental laws are needed to make a Government of laws and not of men and the Directive Principles are needed to lay down the objectives of a good Government.
Our Constitution was not the cause but the result of political and personal freedom".
Since Dicey had said that "the proclamation .
in a Constitution or Charter of the right to personal freedom, or indeed of any other right, gives of itself but slight security that the right has more than a 860 nominal existence",(1) provision had to be made for guaranteeing them andto make them justiciable and enforceable.
This result is reachedby means of articles 12, 13, 32, 136, 141, 144 and 226.
The The High Courts and finally this Court have been made the Judges of whether any legislative or executive action on the part oft the State considered as comprehensively as is possible, offends the Fundamental Rights and article 13(2) declares that legislation which so offends is to be deemed to be void.
It is thus that Parliament cannot today abridge or take away a single Fundamental Right even by a 'unanimous vote in both the Chambers.
But on the argument of the State it has only 'to change the title of the same Act to an Amendment of the Constitution Act and then a majority of the total strength and a 2/3rds majority of the members present and voting in each House may remove not only any of the Fundamental Rights, but the whole Chapter giving them.
And this is said to be possible because of article 368 and its general language which, it is claimed, makes no exception in its text and, therefore, no exception can be implied.
It is obvious that if an Act amending the Constitution is treated as a law it must also be subject to the provisions of article 13(2).
Since the definition of the word 'law ', makes no exception a strenuous eeffort is made on the basis of argument and authority to establish that a constituent power does not result in a law in the ordinary sense.
Distinction is thus made between laws made ordinarily that is to say, from day to day by ordinary majority and laws made occasionally for the amendment of the Constitution by a slightly enhanced majority.
In our Constitution this distinction is not valid in the eye of article 13(2).
It is not essential,, of course, that a difference must always exist in the procedure for the exercise of constituent and ordinary, legislative power.
One has not to go far to find the example of a country in which constitutional law as such may be made by the same agency which makes ordinary laws.
The most outstanding, example is that of England about which de Tocqueville observed.
"the Parliament has an acknowledged right to modify the Constitution; as, therefore, the Constitution may undergo perpetual changes, it does not in reality exist; the Parliament is at once a legislative and a constituent assembly:"(2) of course, the dictum of de Tocqueville that the English Constitution "elle n 'existe point" (it does not exist) is far from accu (1)Dicey: "Law of the Constitution" 10th Edn.
p. 207.
(2)Introduction to the Study of the Law of the Constitution A.V. Dicey Tenth Edn p. 88 quoting from OEuvres completes (14th ed.,1864) (Democratie en Amerique), pp. 166, 167.
861 rate.
There is a vast body of constitutional laws in England which is written and statutory but it is not all found in one place and arranged as a written Constitution usually is.
The Act of Settlement (1701), the Act of Union with Scotland (1707), the Act of Union with Ireland (1800) the Parliament Act (1911) the Representation of the Peoples Acts of 1832, 1867, 1884, 1918, 1928 and 1948, the Ballot Act (1872), the Judicature Acts 1873, 1875 and 1925, the Incitement to Disaffection Act (1934), His Majesty 's Declaration of Abdication Act (1936), the Regency Act (1937) and the various Acts setting up different ministries are examples of what will pass for constitutional law under our system(1).
The Bill of Rights (1689) lays down the fundamental rule in England that taxation may not be levied without the consent of Parliament which in our Constitution has its counterpart in article 265.
In our Constitution also the laws relating to delimitation of constituencies or allotment of seats to such constituencies made or purporting to be made under article 327 or article 328, by reason of the exclusion of the powers of the courts to question them, are rendered constitutional instruments.
Other examples of constitutions which, in addition to constitution proper, contain certain ordinary legislation, having constitutional qualities, also exist.
(2) What then is the real distinction between ordinary law and the law made in the exercise of constituent power? I would say under the scheme of our Constitution none at all.
This distinction has been attempted to be worked out by several authors.
It is not necessary to quote them.
Taking the results obtained by Willoughby(3) it may be said that the fact that a Constitution is written as a Constitution is no distinction because in Britain constitutional law is of both kinds and both parts coexist.
The test that the Constitution requires a different kind of procedure for amendment, also fails because in Britain Parliament by a simple majority makes laws and also amends constitutional statutes.
In our Constitution too, in spite of the claim that article 368 is a code (whatever is meant by the word ,code, here), articles 4, 11 and 169 show that the amendment of the Constitution can be by the ordinary law making procedure.
By this method one of the legislative limbs in a State can be removed or created. 'This destroys at one stroke the claim that article 368 is a code arid also that any special method of amendment of the Constitution is fundamentally necessary.
(1) The list is raken from K. C. Wheare 's: "The Statute of Westminster and Dominion Status" (4th Edn) p. 8.
Dicey and others give different list.
(2) See Constitutions of Austria, Honduras, Nicaragua Peru, Spain and Sweden among others.
The Constitution of Spain, in particular is in several Instruments.
The Constitution of Austria (A t. 149) makes special mention of these constitutional instruments.
(3) Tagore Law Lectures (1924) p. 83.
862 The next test that the courts must apply the Constitution in preference to the ordinary law may also be rejected on the ansalogy of the British practice.
There, every statute has equal standing.
Therefore, the only difference can be said to arise from the fact that.constitutional laws are generally amendable under a process which in varying degrees, is more difficult or elaborate.
This may give a distinct character to the law of the Constitution but it does not serve to distinguish it from the other laws of the land for purposes of article 13(2).
Another difference is that in the written constitutions the form and power of Government alone are to be found and not rules of private law as is the case with ordinary laws.
But this is also not an invariable rule.
The Ame Constitution and our Constitution itself are outstanding examples There are certain other differences of degree, such as that nary _legislation may be tentative or temporary, more detailed or secondary, while the Constitution is intended to be permanent, general and primary.
Because it creates limitations on the ordinary legislative power, constitutional law in a sense is fundamental law, but if the legislative and constituent processes can become one, Ls there any reason why the result should be regarded as law in the one case and not in the other ? On the whole, therefore, as observed in the American Jurisprudence "It should be noticed however that a statute and a constitution, though of unequal dignity are both laws and each rests on the will of the people. . " A Constitution is law which is intended to be, for all time and is difficult to change so that it may not be subject to "impulses ofmajority" "temporary excitement and popular caprice or passion"(2).
I agree with the authors cited before us that the power of amendment must be possessed by the State.
I do not take a narrow view of the word "amendment" as including only minor changes within the general framework.
By an amendment new matter may be added, old matter removed or altered.
I alm concede that the reason for the amendment of the Constitution is a political matter although I do not go as far as some Justice of the Supreme court of the United States did in Coleman vs Miller(3) that the whole process is "political in its entirely from submission until an Amendment becomes part of the Constitution and is not subject to judicial guidance, control or interference at any point.
" There are fundamental differences between our Con (1) American Jurispruence Vol.
II Section 3.
(2) Amendment is expressly called a legislative process in the Constitutions of Colombia:, Costa Rica, Hungary, Panama and Peru.
In Portugal the ordinary legislatures enjoy constituent powers every 10 years.
(3) 3)7 U.S. 443 ; 863 stitution and the Constitution of the United States of America.
Indeed this: dictum of the four Justices based upon, the case of Luther vs Borden(1) has lost some of its force after Baker vs Carr(2) A Republic must, as says Story, (8) possess the means for altering and improving the fabric of the Government so as, to promote the happiness and safety of the people.
The power is also needed to disarm opposition and prevent factions over the Constitution.
The power, however, is not intended to be used for experiments or as an escape from restrictions against undue state action enacted in the Constitution itself.
Nor % 'LS the power of amendment available for the purpose of removing express or fmplied restrictions against the State.
Here I make a difference between Government and State which I shall explain presently.
As Willoughby(4) points out constitutional law ordinarily limits Government but not the State because a constitutional law is the creation of the State for its own purpose.
But there is nothing to prevent the State from limiting itself.
The rights and duties of the individual and the manner in which such rights are to be exercised and enforced ;ire ordinarily to be found in the laws though some of the Constitutions also fix them.
It is now customary to have such rights guaranteed in the Constitution.
Peaslee,(5) writing in 1956 says that about 88% of the national Constitutions contain clauses respecting individual liberty and fair legal process; 83% respecting freedom of speech and the press; 82% respecting property right; 80% respecting rights of assembly and association; 80% respecting rights of conscience and religion; 79% res pecting secrecy of correspondence and inviolability of domi cile; 78% respecting education; 73% respecting equality 64% respecting right to petition; 56% respecting labour; 51% respecting social security; 47% respecting rights of movement within, and to and from the nation; 47% respecting health and motherhood; and 35% respecting the non retroactivity of laws.
In some of the Constitutions there is an attempt to put a restriction against the State seeking to whittle down the rights conferred on the individual.
Our Constitution is the most outstanding example of this restriction which is to be found in article 13(2). 'The State is no doubt legally supreme but in the supremacy of its powers it may create, impediments on its own sovereignty.
Government is always bound by the restrictions created in favour of fundamental Rights but the State may or may not be.
Amendment may be open to the State according to the procedure laid (1) (2) ; (7 L. Ed.
2d 633).
(3) Commentaries on the Constittition of the United States (1833) Vol.
III pp 686 687.
(4) Tagore Law Lectures, p. 84.
(5) Constitutions of Nations, Vol.
I (2nd Edn.) p. 7.
863 stitution and the Constitution of the United States of America.this: dicttan of the four Justices based upon, the case of Luther vs Borden(1) has lost some of its force after Baker vs Carr(2).
A Republic must, as says Story, (,,) ssess the means for ai and:improving the 'fabric of tc Government so as, to promote the happiness and safety, of the people.
The power, is dw needed to disarm opposition and prevent factions over theThe power, however, is not intended to be used for experiments or as an escape from restrictions against undue state action enacted in the Constitution itself.
Nor is the power of amendment available for the purpose of removing express or implied restrictions against the State.
Here I make a difference between Government and Statewhich I shall explain presently.
As Willoughby(4) points out wmtitutional law ordinarily limits Government but not the State because a constitutional la,* is the creation of the State for its own pu, se.
But there is nothing to prevent the State from rpo limiting itself.
The rights and duties of the individual and the. manner in which such rights are to be exercised and enforced are ordinarily to be found in the laws though some of the Constitutions also fix them.
It now customary to have such rights guaranteed in the Constitution.
Peaslee,(5) writing in 1956 says that about 88,Yo of the, national Constitutions contain clauses respecting individual liberty and fair legal process; 83% respecting freedom of speech and the press; 82% respecting property right; 80% respecting rights of assembly and association; 80% respecting rights of conscience and religion; 79% respecting secrecy of correspondence and ' inviolability of domicile; 78% respecting education; 73% respecting equality; .64% respecting right to petition; 56% respecting labour; 51% respecting social security; 47% respecting rights of movement within, and to and from the nation; 47% respecting health and motherhood; and 35% respecting the non retroactivity of laws.
In some of the Constitutions there is an attempt to put a restriction Against the State seeking to whittle down the rights conferred ' on the 'individual.
Our Constitution is the most outstanding i6xample of this restriction Which is to be found in article 1.3(2).
,Tbe State is no doubt legally supreme but in the supremacy of its powers it may creat e impediments on its OI%M sovereignty.
Govent is always bound by the restrictions created in favour of Fundamental Rights but the State may or may not be.
Amendment may be open to the State according to the procedure lai(r (1)7 How. 1 (2) ; (7 L. Ed.
2d 633).
(3) Commentaries on the Constitution of the United, Sta:tes (1 833) 'Vol.
III PP, 686 687.
(4)Tagore Law Lectures, p. 84.
(5)Constitutions of Nations, Vol.
I (2nd Edn.) p. 7. 864 down by the Constitution.
There is nothing, however, to prevent the State from placing certain matters outside the amending procedure( ').
Examples of this exist in several Constitutions of the world : see article 5 of the American Constitution; article 95 of the Constitution of France,; article 95 of the Constitution of Finland; article 97 of the Constitution of Cambodia; article 183 of the Constitution of Greece; article 97 of the Japanese Constitution; article 139 of the Italian Constitution, to mention only a few.
When this happens the ordinary procedure of amendment ,ceases to apply.
The unlimited competence (the kompetenz kompetenz of the Germans) does not flow from the amendatory process.
Amendment can then be by a fresh constituent body.
To attempt to do this otherwise is to attempt a revolution.
I do not known why the word "revolution", which I have used before, should evoke in some persons an image of violence and subversion.
The whole American Constitution was the result of a bloodless revolution and in a sense so was ours.
The adoption of the whole Constitution and the adoption of an amendment to the Constitution have much in common.
An amendment of the Constitution has been aptly called a Constitution in little and the same question arises whether it is by a legal process or by revolution.
There is no third alternative.
An amendment, which repeals the earlier Constitution, unless legal, is achieved by revolution.
As stated in the American Jurisprudence : "An attempt by the majority to change the fundamental law in violation of self imposed restrictions is unconstitutional and revolutionary".
( ') There are illegal and violent revolutions and illegal and peaceful revolutions.
Modification of Constitution can only be by the operation of a certain number of wills acting on other wills.
The pressure runs through a broad spectrum, harsh at one end and gentle at the other.
But whatever the pressure may be, kind or cruel, the revolution is always there if the change is not legal.
The difference is one of method, not of kind.
Political thinking starts from the few at the top and works downward more often than in the reverse direction.
It is wrong to think that masses alone, called "the people" after Mazini, or "the proletariate" after Marx, 'begin a revolutionary change.
Political changes are always preceded by changes in thought in a few.
They may be outside the (1) In the Constitution of Honduras, partial amendment only is possible.
For a complete amendment a Constituent Assembly has to be convoked.
In the Constitution of Brazil, the Constitution cannot be amended when there is a state of seige (our emergency).
In Turkey an amendment of Article 1 cannot even be proposed.
(2) Vol.
12, Section 25 pp.
629 630.
865 Government or in it.
It is a revolution nevertheless, if an attempt is made to alter the will of the people in an illegal manner.
A revolution is successful only if there is consent and acquiescence and a failure if there is not.
Courts can interfere to nullify the revolutionary change because in all cases of revolution there is infraction of existing legality.
It is wrong to classify as revolution some thing coming from outside the Government and an illegality committed by the Government against the Constitution as evolution.
I am mindful of the observations of Justice Holmes, that "We need education in the obvious to learn to transcend our own convictions and to leave room for much that we hold dear to be done away with short of revolution, by the orderly change of law.
"(1) But the problem we are faced with is not an orderly change of law but of a claim to a revolutionary change against the vitals of the Constitution.
In such a case the apprehension is that democracy may be lost if there is no liberty based on law and law based on equality.
The protection of the fundamental Rights is necessary so that we may not walk in fear of democracy itself.
Having assumed the distinction between Government and ' State let me now explain what I mean by that distinction and what the force of article 13(2) in that context is.
I shall begin first by reading the pertinent article.
Article 13 (2), which I quoted earlier, may again be read here: "13. . . . . . (2)The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of contravention, be void.
" The definition of the State in article 12 reads "12.
In this Part, unless the context otherwise requires, "the State" includes.the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.
" The State is the sum total of all the agencies which are also individually mentioned in article 12 and by the definition all the parts severally are also included in the prohibition.
Now see how 'law ' is defined: "13. . . . . (1) The Mind and Faith of Justice Holmes p. 390. 866 (3)In this article, unless the context otherwise requires, (a) "law" includes any ordinance, order, bye law, rule, regulation, notification, custom or usage having in the territory of India the force of law;" In Sajjan Singh 's case(1) I said that if amendments of the constitution were meant to be excluded from the word "law" it was the easiest thing to add to the definition the further words "but shall not include an amendment of the Constitution".
it 'LS argued now before us that this wag not necessary because article 368 does not make any exception.
This argument came at all stages like a refrain and is the real cause of the obfuscation in the opposite view.
Those who entertain this thought do not pause to consider : why make a prohibition against the State? As Cooley said: "there never was a republican Constitution which delegated to functionaries all the latent powers which lie dormant in every nation and are boundless in extent.
and incapable of definition.
", If the State wields more power than the functionaries there must be a difference between the.
State and its agencies such as Government, Parliament, the Legislatures of the States and the local and other authorities.
Obviously, the State means more than any of there or all of them put together.
By making the State subject 'to Fundamental Rights it is clearly stated in article 13 (2) that any ' ,of the agencies acting alone or all the agencies, acting together are not above the Fundamental Rights.
Therefore, when the House .of the People or the Council of States introduces a Bill for the abridgement of the Fundamental Rights, it ignores the injunction against it and even if the two Houses pass the Bill the injunction is next operative against the President since the expression "Government of India" in the General Clauses Act means the President of India.
This is equally true of ordinary laws and laws seeking to amend the Constitution.
The meaning of the word "State" will become clear if I draw attention at this stage to article 325 of the Constitution of Nicargua, which reads as follows: "325.
The agencies of the Government, jointly or separately, are, for bidden to suspend the Constitution or to restrict she rights granted by it, except in the cases provided therein.
" In our Constitution the agencies of the State are controlled jointly and separately and the prohibition is against the whole force of (1) ; 867 the State acting either in its executive or legislative capacity.
Ile of the Executive is more important than even the Legislature.
In modem politics run on parliamentary democracy the Cabinet attains a position of dominance over the Legislature.
The Executive, therefore, can use the Legislature as a means of securing changes in the laws which it desires.
It happened in Germany under Hitler.
The fact has been noticed by numerous writers.
for example, Wade and Philips(1), Sir Ivor Jennings(2) , Dawson(3), Keith(4) and Ramsay Muir(5).
Dawson in particular said that a Cabinet is no longer responsible to the Commons but the Commons has become instead responsible to the Government.
Ivor Jennings added that if a Government had majority it could always secure the legislation.
The others pointed out that the position of the Cabinet towards Parliament tends to assume more or less dictatorial powers and that was why people blamed Government, this is to say, the Cabinet rather than Parliament for ineffective and harsh laws.
This is true of our country also regarding administration and Station.
Fortunately, this is avoided at least in so far as the Fundamental Rights are concerned.
Absolute, arbitrary power in defiance of Fundamental Rights exist nowhere under our Constitution, not even in the largest majority.
The people 's representatives have, of course, inalienable and undisputable right to alter, reform or abolish the Government in any manner they think fit, but the declarations of the Fundamental Rights of the citizens are the inalienable rights of the people.
Ile extent of the power of the rulers at any time is, measured by the Fundamental Rights.
It is wrong to think of them as rights within the Parliament 's giving or taking.
Our Constitution enables an individual to oppose successfully the whole community and the State and claim his rights.
This is because the Fundamental Rights are I so safe guarded that within the limits set by the Constitution they are inviolate.
The Constitution has itself said what protection has been created round the person and property of the citi zens and to what extent this protection may give way to the general good.
it is wrong to invoke the Directive Principles as if there is some antinomy between them and the Fundamental Rights.
The Directive Principles lay down the routes of State but such action must avoid the restrictions stated in the Fundamental Rights.
Prof. Anderson (6) taking the constitutional amendments, as they have been in our country, considered the Directive principles to be more potent than the Fundamental (1) Constitutional Law, 6th Edn.
p. 27.
(2) Parliament (1957) pp.
11 12.
(3) Government of Canada (1952) Chapter XIX.
(4) An Introduction to British Constitutional Law (1931) P. 48, (5) How Britain is Governed P. 5,6.
(6) Changing Law in Developing Countries, pp. 88, 89. 868 Rights.
That they are not, is clear when one takes the Fundamental Rights.
with the guaranteed remedies.
The Directive Principles are not justiciable but the Fundamental Rights are ' made justiciable.
This gives a judicial control and check over State action even within the four corners of the Directive Principles.
It cannot be conceived that in following the Directive Principles the Fundamental Rights (say for example, the equality clause) can be ignored.
If it is attempted, then .
the action is capable of being struck down.
In the same way, if an amendment of the Constitution is law for the reasons explained by me, such an amendment is also open to challenge under article 32, if it offends against the Fundamental Rights by abridging or taking them away.
Of course, it is always open to better Fundamental Rights.
A law or amendment of the Constitution would offend the Fundamental Rights only when it attempts to abridge or take them away.
The importance of Fundamental Rights in the world of today cannot be lost sight of.
On December 10, 1948, the General.
Assembly of the United Nations adopted the Universal Declaration of Human Rights without a dissent.
This draft was made after the Third Committee of the United Nations had devoted 85 meetings to it.
The Declaration represents the civil, political and religious liberties for which men have struggled through the centuries and those new social and economic rights of the Individual which the Nations are increasingly recognising in their Constitutions.
Some of these were proclaimed during the French Revolution and areincluded in the declarations of Nations taking pride in the dignity and liberty of the Individual.
They are epitomized in the Preamble, and more fully expressed in Parts III and IV of our Constitution.
These Declarations wherever found are intended to give a key to social progress by envisaging rights to work, to education and to 'social insurance.
The Nations of the world are now in the second stage, where Covenants are being signed on the part of the States to respect such rights.
United Nations Human Rights Commission has worked to produce two drafts one dealing, with civil and political rights and the other with economic, social and cultural rights.
, The third stage is still in its infancy in which it is hoped to provide for the enforcement of these rights on an international basis.
The Regional Charter of the Human Rights under which there is established already a European Commission of Human Rights to investigate and report on violations of Human Rights, is a significant step in that direction.
After 1955 the European Commission has become competent to receive complaints from individuals although the enforceability of Human Rights on an international basis is still far from being achieved.
If one compares the Uni 869 versal Declaration with Parts III and IV of our Constitution one finds remarkable similarity in the two.
It is significant that our Committee on Fundamental Rights was deliberating when the This Committee of the United Nations was deliberating on the.
Universal Declaration of Human Rights.
Both are manifestos of man 's inviolable and fundamental freedoms.
While the world is anxious to secure Fundamental Rights in ternationally, it is a little surprising that some intellectuals in our country, whom we may call "classe non classe" after Hegel, think of the Directive Principles in our Constitution as if they were superior to Fundamental Rights.
As a modern philosopher(1) said such people 'do lip service ' to freedom thinking all the time in terms of social justice "with 'freedom ' as a by product".
Therefore, in.
their scheme of things Fundamental Rights become only an epitheton ornans.
One does not know what they believe in the communistic millennium of Marx or the individualistic Utopia of Bastiat.
To them an amendment of the Fundamental Rights is permissible if it can be said to be within a scheme of a supposed socioeconomic reform, however, much the danger to liberty, dignity and freedom of the Individual.
There are others who hold to liberty and freedom of the.
Individual under all conditions.
Compare the attitude of Middleton Murray who would have Communism provided "there was universal freedom of speech, of association, of elections and of Parliament" To such the liberty and dignity of the Individual are inviolable.
Of course, the liberty of the individual under our Constitution, though meant to be fundamental, is subject to such restrictions as the .
needs of society dictate.
These are expressly mentioned in the Constitution itself in the hope that no further limitations would require to be imposed at any time.
I do not for a moment suggest that the question about reasonableness, expediency or desirability of the amendments of the Constitution from a political angle is to be considered by the courts.
But what I do say is that the possession of the necessary majority does not put 'any party above the constitutional limitations implicit in the Constitution.
It is obvious that the Constituent Assembly in making the Fundamental Rights justiciable was not justisfied with reliance on the sense of self restraint or public opinion(2) on which the majority in Sajjan Singh 's(3) case does.
This is not argument of fear: The question to ask is : can a party, which enjoys 2/3rds majority today, before it (1)Benedetto Croce.
(2)Sir Robert Peel calls it "that great compound of foiiy, weakness, prejudice, wrong feeling, right feeling, obstinacy and newspaper paragraphs" (3)[1965] 1 S.C.R. 933.
CI/67 10 870 loses it, amend article 368 in such wise that a simple majority would be sufficient for the future amendments of the constitution ? Suppose it did so, would there be any difference between the constitutional and the Ordinary laws made thereafter ? The liberty of the Individual has to be fundamental and it has been so declared by the people.
Parliament today is not the constituent body as the Constituent Assembly was, but is a constituted body which must bear true, allegiance to the Constitution 'as by law established.
To change the Fundamental part of the Individual 's liberty is a usurpation of constituent functions be cause they have been placed outside the scope of the power of constituted.
Parliament.
It is obvious that Parliament need not now legislate at all.
It has spread the umbrella of article 31 B and .has only to add, a clause that all legislation involving Fundamental Rights would be deemed to be within that protection hereafter.
Thus the only palladium against legislative dictatorship may be removed by a 2/3rds majority not only in praesanti but, defuturo.
This can hardly be open to a constituted Parliament.
Having established, that there is no difference between the ordinary legislative and the amending processes in so far as cl.(2) of Aft. 13 is concerned, because both being laws in their true character, come within the prohibition created, by that, clause against the State and that the Directive Principles cannot be invoked to destroy Fundamental Rights.
I proceed now to examine whether the English and Amercan precedents lay down any principle applicable to amendments of our Constitution.
In, Britain the question whether a constitutional amendment is valid or not at arise because the courts are powerless ' Parliamentary Sovereignty under the English Constitution means that Parliament enjoys the right to make or unmake any law whatever and no person or body has any right to question the legislation.
The utmost and absolute despotic power belongs to Parliament.
It "make, confirm, enlarge, restrain, abrogate, repeal, revise and expand law concerning matters of all possible denominations".
What Parliament does, no authority on earth can undo.
The The Queen, each House of Parliament the constituencies and the law courts have in the past claimed independent legislative powers but these claims are unfounded.
It is impossible to compare the Indian Parliament with the Brittsh Parliament as the former con codedly in the ordinary legislation is subject to judicial review, both on the ground of competence arising from a federal structure And the existence of Fundamental Rights.
The question of competence in the matter of amendment of the Constitution depends upon, firstly, compliance with the procedure laid down in article 368 and, secondly, upon the question whether,the.process is in 871 any manner restricted by the Fundamental Rights.
Such questions cannot obviously arise in the British Parliament( ').
The example of the Constitution of the United States cannot also serve any purpose although the greatest amount of support was sought to be derived from the decisions of the Supreme Court and the institutional writings in the United States.
The power of amend in the United States Constitution flows from article V. (1).
It must be noticed that the power is clearly not made equal to ordinary legislative process.
One salient point of difference is that the President is nowhere in ' this scheme because his negative does not run.
( ') The amendment is thus not of the same quality as ordinary legislation.
The Supreme Court of the United States has no doubt brushed aside objections to amendments of the Constitution on the score of incompetence, but has refrained from giving any reasons.
In the most important of them, which questioned the 18th Amendment, the Court only stated its conclusions.
After recalling the texts of the Article under which Amendments may be made and of the 18th Amendment proposed by the Congress in 1917 and proclaimed as ratified by the States in 1919, the Court announced : "4.
The prohibition of the manufacture, sale, trans portation, importation, and exportation of intoxicating liquors for beverage purposes, as embodied in the 18th amendment, Is within the power to amend reserved by article 5 of the Constitution." (emphasis supplied) (4) One would have very much liked to know why this proposition was laid down in the terms emphasised above if the effective exercise of the.
power depended upon a particular procedure which was immaculately followed.
The silence of the Court about its reasons has been noticed in the same judgment by Mr. Justice (1) Dicey gives three supposed limitations on the power of Parliament.
Of these one that language has been used in Acts of Parliament which implies that one Parliament can make laws which cannot be touched by any subsequent Parliament, is not true.
The best examples are Act of treaties with Scotland and Ireland but these same Acts have been amended later.
Francis Bacon found this claim to be untenable.
See Dicey 'The Law of the Constitution pp. 64, 65.
(2) Article V.
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several States, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress, provided that no amendment which may be made prior to the year ' one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate." (3) Hollingsworth vs Virginia ; (4) National Prohibition Cases; , 872 Mckenna.
In feser vs Garnett(1) the Court was hardly more expressive.
The only question considered by the Court was "The first contention is that the power of amendment conferred by the ' Federal Constitution, and sought to be exercised, does not dxtend to this Amendment, because of its character." (emphasis supplied).
This was repelled by Brandeis, J on behalf of the unanimous court on the grx)und that the Amendment was in character and phraseology similar to the 15th Amendment and was adopted by following the same method.
As the,lsth Amendment had been accepted for half a century the suggestion that it was not in accordance with law, but as a war measure validated by acquiescence was not accepted.
It is significant, however, that at the time of the 18th Amendment, the arguments were (a) that 'amendment ' was ' limited to the correction of error in the framing of the Constitution, (b) Article V did not comprehend the adoption of additional or supplementary provisions, (c) ordinary legislation could not be embodied.
in the constitutional amendment, and (d) Congress could not 'propose amendment which pared the sovereign power of the States.
None of these at I guin ents was accepted.
At the time of the 19th Amendment, which increased the franchise in the States, the narrow ground was that a State which had not ratified the Amendment would be, deprived of its equal suffrage in the Senate because its representatives in that body would be persons not of its choosing, i.e. persons,chosen by voters whom the State itself had not authorised to vote for Senators.
This argument was rejected.
However, in Dillion vs Gloss(2) the Supreme Court held that Congress had the, power to a time limit for ratification because article V implied that application must be within some reasonable time after.
the proposal".
The fixation of 7 years was held by the Court to be reasonable.
In 1939 came the case of Coleman vs Miller(3) which dealt with the Child Labour Amendment.
Such a law was earlier re jected by the Kansas Leizislature.
Later the State ratified the amendment after a lapse of 13 years by the casting vote of the Lt. Governor.
Mandamus was asked against the Secretary of Kansas Senate to erase the endorsement of ratification from its record and it was denied.
The Supreme Court of Kansas refused to review this denial on certiorari.
The Supreme Court of the United States in an opinion, in which not more than 4 Justices (1) 258 U.S. 130.
(2)256 U.S. 368.
(3) 307 U.S. 443.
873 took any particular view,.
declined to interfere.
Majority affirmed the decision of Supreme Court of Kansas.
Four Justices considered that the question was political from start to finish and three Justices that the previous rejection of the law and the extraordinary time taken to ratify were political questions.
Although the Supreme Court has scrupulously refrained from passing on the ambit of article V it has nowhere said that it will not take jurisdiction in any case involving the amending process.
(1) In Hollingsworth vs Virginia(2) the supreme Court assumed that the question was legal.
The Attorney General did not even raise an objection.
In Luther vs Borden($) the matter was finally held to be political which opinion prevailed unimpaired 'till some doubts have arisen after Baker vs Carr(4).
In the case the Court remarked "We conclude. that the non justiciability of claims resting on the guarantee clause which arises from the embodiment of questions that were thought 'Political ' can have no bearing upon the justiciability of the, equal protection claim presented in this case.
We ernphasise that it is the involvement in guarantee clause claims of the elements thought to define "political questions" and no other feature, which could render them non justiciable.
specifically, We have said that such claims are not held non justiciable because they touch matters of State governmental Organisation.
It would appear that the Equal Protection Clause was held to supply a guide for examination of apportionment methods better than the Guarantee Clause.
Although there is no clear pronouncement, a great contro versy exists whether questions of substance can ever come before the Court and whether there are any implied limitations upon the amendatory Power.
In the cases above noted, the other articles (particularly the Bill of Rights) were not read as limitations and no limitation outside the amending clause was implied.
In the two cases inwhich the express limitation of Equal suffrage Clause was involved the Court did not enter the question.
Thus the 15th and, on its strength, the 19th Amendments were upheld.
In Coleman vs Miller(5) the political question doctrine brought the support of only four Justices and in Baker vs Carr(4) the Federal, Courts were held to have jurisdiction to scrutinise the fairness of legislative apportionment, under the 14th Amendment and to take steps to assure that serious inequities were wiped out.
The (1) See Rottschaeffer: Handbook of American Constitutional Law (1939) pp.
397, 398, though the author 's opinion is that it will deny jurisdiction.
(2) ; (3) (4) ; (5) 307 U. section 443 874 courts have thus entered the political thicket '.The question of delimitation of constituencies cannot, of, course, arise before courts under our Constitution because of article 329.
Baker vs Carr(1) makes the Court sit in judgement over the possession and distribution of politcal power which is an essential part of a Constitution.
The magical formula of "political questions" is losing ground and it is to be hoped that a change may be Soon.
coming.
Many of the attacks on the amendments were the result of a misunderstanding that the Constitution Was a compact between States and that the allocation of powers was not to be changed at all.
This was finally decided by Texas vs White (2) as far back as 1869.
The main question of implied limitations has evoked a spate of writings. Bryce(s), Weaver(4), Mathews(5), Burdick(6), Willoughby(7), Willis(8), Rottshaefer(9), Orfield(10) (to name only a few) are of the opinion that there are no, implied limitations, although, as Cooley points out, "it is sometimes expressly declared what indeed is implied without the declaration that everything in the declaration of rights contained is excepted out of the general powers of Government, and all laws contrary thereto shall be void(11).
" Ex press checks there are only three.
Two temporary checks were operative till 1808 and dealt with interference with importation of slaves and the levying of a direct tax without apportionment among then States according to population.
Permanent check that now remains is equality of representation of States in the Senate.
Some writers suggest that this, check may also be removed in two moves.
By the first the Article can be, amended and by the second the equality removed.
When this happens it will be seen whether the Supreme Court invokes any doctrine such as achieving.
indirectly what cannot be done directly.
It will, of course, be completely out of place in a judgment to discuss the.
views of the several writers and so I shall confine myself to the observation of Orfield to whom again and again counsel for the State turned either for support or inspiration.
Accord.
ing to him, there are ' no implied limitations unless the Courts adopt (1) ; (2) Wall.700.
(3) The American Commonwealth Vol.
I. (4) Constitutional law and its Administration (1946).
(5) American Constitutional System (2nd Edn.) p. 43 45.
(6)The Law of the American Constitution (7th Imp.) p. 45.
(7) Tagore Law Lectures (1924).
(8)constitutionaI Law of United States (1936).
(9) Handbook of American Constitutional Law.
(10)The Amending of the Federal Constitution (11)Constitutional Limitations Vol.
I, 8th Edn.
95, 96.
875 that view and therefore no limitations on the substance of the amendments except the Equality Clause.
His view is that when Congress is in the amending process, it is not legislating but exercising a peculiar power bestowed by article V.
I have already shown that under our Constitution the amending process is a legislative process, the only difference being a special majority and the existence of article 13(2).
Orfield brushes aside the argument that this would destroy the very concept of the Union which, as Chief Justice.
Marshall had said, was indestructible.
Orfield faces boldly the question whether the whole Constitution can be overthrown by an amendment and answers yes.
But he says that the amendment must not be in violation of the Equality Clause.
This seems to be a great concession.
He makes this exception but Munro( '), who finds it difficult to conceive of an unamendable constitution suggests that it should be possible to begin with that clause and then the door to amendments would be wide open.
Of course, the Supreme, Court has not yet faced an amendment of this.
character and it has not yet denied jurisdiction to itself.
In the.
United States the Constitution works because, as observed by Willis, the Supreme Court is allowed to do " 'the work of remolding the Constitution to keep it abreast with new conditions and new times, and to allow the agencies expressly endowed with the; amending process to act only in extraordinary emergencies or when, the general opinion disagrees with the opinion of the Supreme Court.
" In our country amendments, so far have bean made only with the object of negativing the Supreme Court,decisions, but more of it later.
I have referred to Orfield although there are greater names than his expounding the same views.
I have refrained from referring to the opposite view which in the words of Willoughby has been "strenuously argued by reputable writers" although Willis discourteously referred to them in his book.
My reason for not doing so is plainly this.
The process of amendment in the United States is clearly not a legislative process and there is no provision like article 13 (2) under which "laws" abridging or taking away Fundamental Rights can be declared void.
Our liberal Constitution has given to the Individual all that he should have freedom of speech, of association, of assembly, of religion, of motion and locomotion, of property and trade and profession.
In addition it has made the State incapable of abridging or taking away these rights to the extent guaranteed, and has itself shown how far the enjoyment of those rights can be curtailed.
It; has given a guaranteed right 'to the person affected to move the Court. , I le guarantee is worthless if the rights are capable of being taken away.
This makes our Constitution unique and the American precedents cannot be of much assistance.
(1) The Govenment of the United States (5th Edn.) p. 77.
876 The Advocate General of Madras relied upon Vedel.(1) According to Vedel, a prohibition in the Constitution against its own amendment has a political but not juridical value, and from the juridical point of view, a declaration of absolute constitutional immutability cannot be imagined.
The constituent power being supreme, the State cannot be fettered even by itself.
He notices, however, that the Constitution of 1791 limited the power of amendment (revision) for a certain time and that of 1875 prohibited the alteration of the Republican form of Govermment.
He thinks that this hindrance can be removed by a two step amendment.
He concludes that the constituent of today cannot bind the nation of tomorrow and no Constitution can prohibit its amend Of course, the French have experimented with over a dozen Constitutions, all very much alike, while the British have slowly changed their entire structure from a monarchical executive to an executive from Parliament and have reduced the power of the House of Lords.
Cambell Bannerman former Prime Minister of England summed up the difference to Ambassador M. de Fleurian thus : ".
Quand nous faisons une Revolution, nous ne ditruisons pas notre maison, nous en conservons avec soin la facade, et, derriere cette facade, nous reconstruisons une nouvelle maison.
Vous, Francais, agissez autrement; vous jetez bas le vieil edifice et vous reconstruisez la mime maison avec une autre facade et sous un nom different." (When we make a Revolution we do not destroy an house, we save with care the facade and behind construct a new house.
You, Frenchmen, act differently.
You throw down the old edifice and you reconstruct the same house with a different facade and under a different name).
M.de Fleurian agreed that there was a lot of truth in it (ll ya du vrai dans cette boutade) (2).
But of course to a Frenchman brought up in a legal system in which the Courts do not declare even an ordinary statute to be invalid, the idea of the unconstitutionality of a constitutional amendment does not even occur.
France and Belgium have created no machinery for questioning legislation and rely on moral and political sanctions.
Even an English lawyer and less so an American lawyer find it difficult to understand how the legality of an amendment of the Constitution can ever be questioned.
It (1) Mannual Elementaire da Droil Constitutional (Sirey) p. 117.
(2) Recounted by M. de Fleuriau in the Preface to J. Magnan de Bornier, L 'Empire Britannique, son evolution politique et constitutionnelle p. 6, quoted in Wheare: The Statute of Westminster and Dominion status, P. 9 10.
877 appears to them that the procedure for the amendment being gone through there is no one to question and what emerges is the Constitution as valid as the old Constitution and just as binding.
The matter, however, has to be looked at in this way.
Where the Constitution is overthrown and the Courts lose their position under the old Constitution, they may not be able to pass on the validity of the new Constitution.
This is the, result of a revolution pure and simple.
Where the new Constitution is not accepted and the people have not acquiesced in the change and the courts under the old Constitution function, the courts can declare the new Constitution to be void.
Perhaps even when the people acquiesce and a new Government comes into being, the courts may still declare the new Constitution to be invalid but only if moved to do so.
It is only when the courts begin to function under the new Constitution that they cannot consider the vires of that Constitution because then they owe their existence to it.
I agree with Or field in these observations taken from his book.
He, however, does not include amendments of the Constitution in these remarks and expressly omits them.
His opinion seems to indicate that in the case of amendments courts are completely free to see that the prescribed constitutional mode, of alteration is complied with and the alteration is within the permissive limits to which the Constitution wishes the amendments to go.
This is true of all amendments but particularly of an amendment seeking to repeal the courts ' decision and being small in dimension, leaves the courts free to consider its validity.
The courts derive the power from the existing terms of the Constitution and the amendment fails if it seeks to overbear some existing restriction on legislation.
What I have said does not mean that Fundamental Rights are not subject to change or modification.
In the most inalienable of such rights a distinction must be made between possession of a right and its exercise.
The first is fixed and the latter controlled by justice and necessity.
Take for example article 21 : "No person shall be deprived of his life or personal liberty except according to procedure established by law".
Of all the rights, the right to one 's life, is the most valuable.
This article of the Constitution, therefore, makes.
the right fundamental.
But the inalienable right is curtailed by a murderer 's conduct as viewed under law.
The deprivation, when it takes place, is not of the right which was immutable but of the continued exercise of the right.
Take a Directive Principle which is not enforceable at law but where the same result is reached.
The right to employ ment is a directive principle.
Some countries even view it as a Fundamental Right.
The exercise, however, of that right must depend upon the capacity of Society to afford employment to all 878 and sundry.
The possession of this right cannot be confused with its exercise.
One right here is positive and can be enforced although its, exercise can be curtailed or taken away, the other is a right which, the State must try to give but which cannot be enforced.
The Constitution permits a curtailment of the exercise of most of the Fundamental Rights by stating the limits of that curtailment.
But this power does not permit the, State itself, to take away or abridge the right beyond the limits set by the Constitution.
It must also be remembered that the rights of one% individual are often opposed by the rights of another individual and thus also become limitative.
The Constitution in this way" permits the Fundamental Rights to be controlled in their exercise but prohibits their erasure.
It is argued that such approach makes Society static and robs the State of its sovereignty.
It is submitted that it leaves revolution as the holy alternative if change is necessary.
This is not right.
The whole Constitution is open to amendment only two dozen articles are outside the reach of article 368.
That too because the Constitution has made them fundamental.
What is being suggested by the counsel or the State is itself a revolution, because as things are that method of,amendment is illegal.
There is a legal method.
Parliament must act in a different way reach the Fundamental Rights.
The State must reproduce the power which it has chosen to put under a restraint.
Just as the French or the Japanese,etc.
cannot change the articles of their Constitution which are, made free, from the power of amendment and ' must call a convention or a constituent body, so also we ' India cannot abridge or take away the Fundamental Rights by the ordinary amending process.
Parliament must amend article 369 to convoke another Constituent Assembly pass a law under item 97 of the First List of Schedule VII to call a Constituent Assembly and then that assembly may be able to abridge or take away the Fundamental Rights if desired.
It cannot be done otherwise.
The majority in Sajjan Singh 's case(1) suggested bringing article 32 under the Proviso to improve protection to the Fundamental Rights.
Article 32 does not stand in need of this Protection.
To abridge or take away that article (and the same is true of all other Fundamental Rights) a constituent body and not a constituted body is required.
Parliament today is a constituted body with powers of legislation which include amendments of the Constitution by a special majority but only so far as article 13 (2) allows.
To bring into existence a constituent body is not impossible as, I had ventured to suggest during the hearing and which I have now more fully explained here.
It may be said that.
this is not necessary because article 368 can be amended by Parliament to confer on itself constituent powers over the Fundamental Rights.
This would he wrong and against article 13 (2).
Parliament cannot.
increase its (1) ; 879 powers in this way and do indirectly which it is intended not to de.
directly.
The State does not lose its sovereignty.
but as it has chosen.
to create, self imposed restrictions through one constituent body those restrictions cannot be ignored by a constituted body which makes laws.
Laws so made can affect those parts of the Constitution which are outside the restriction in article 13 (2) but any 'law (legislative or mendatory) passed by such a body must conform to that article.
To be able to abridge, or take away the Fundamental Rights which give so many assurances and guarantees a fresh Constituent Assembly must be, convoked.
Without such action the protection of the Fundamental Rights must remain immutable and any attempt to abridge or take them away in any other way must be regarded as revolutionary.
I shall now consider the amendments of the Fundamental Rights made since the adoption of the Constitution, with a view to illustrating my meaning.
Part III is divided under different headings.
They are (a), General (b) Right to Eqility (c) Right to Freedom (d) Right against exploitation (e) Right to Freedom of Religion (f) Cultural and Educational Rights (g) Right to Property (h) Right to Constitutional Remedies.
I shall first deal with amendments of topics other than the topic (g) Right to Property. 'The articles which are amended in the past are Art 15 & and 19 by the 1st Amendment (18th June 1951) and Art, 16 by the 7th Amendment (19th October 1956).
The 16th Amendment added the words "the sovereignty and integrity of India to some clauses.
As that does not abridge or take away any Fundamental Right, I shall not refer to the 16th Amendment hereafter.
That Amendment was valid.
The changes so made may be summarized.
In article 15, which deals with.
prohibition or discrimination on the ground of religion, race, caste, sex or place of birth, clause (3) allowed the State to make special provision for women and children.
A new clause was added which reads: "(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes".
It is argued by counsel for the State that by lifting the ban to make special provision for backward classes of citizens, there is discrimination against the higher classes.
This is the view which classes in a privileged position who had discriminated against the backward ,classes for centuries, might indeed take.
But I cannot accept this contention.
The Constitution is intended to secure to all citizens "Justice, social, economic and political and Equality of status and opportunity" (vide the Preamble) and the Directive Principles include article 38 which provides: 880 .lm15 "38 The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life." To remove the effect of centuries of discriminatory treatment and to raise the down trodden to an equal status cannot be regarded ,as discriminatory against any one.
It is no doubt true that in State of Madras vs Champakam(1) the reservation of seats for Backward Classes, Scheduled Castes and Tribes in public educational institutions was considered invalid.
Articles 16(4) and 340 had already provided for special treatment for these backward ,classes and article 46 had provided that the State shall promote, with special care their educational and economic interests.
With all ,due respects the question of discrimination hardly arose because in view of these provisions any reasonable attempt to raise the status of the backward classes could have been upheld on the principle of classification.
In any event, the inclusion of this clause to article 16 does not abridge or take away any one 's Fundamental Rights unless the view be taken that the backward classes for ever must remain backward.
By the First Amendment the second and the sixth clauses of article 19 were also amended.
The original cl.
(2) was substituted by a new clause and certain words were added in clause (6).
The changes may be seen by comparing the unamended and the amended clauses side by side : "19( 1) All citizens shall have the right (a) to freedom of speech and expression; (2) (Before Amendment) (After Amendment) Nothing in sub clause (a) of clause (1), Nothing in sub clause (a) of clause (1)shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security or tends to overthrow, the State.
shall affect the operation of any existing law, or prevent the State from making any law.
in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interest of the. security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence, The amendment was necessary because in Romesh Thapar v State of Madras(2) it was held that disturbances of public tranquallity did not come within the expression "undermines the secu (1)[1951]S.C.R.525.
(2) ; 881 rity of the State".
Later the Supreme Court itself observed in the State of Bihar vs Shailabala Devi(1) that this Court did not intend to lay down that an offence against public order could not in any case come within that expression.
The changes related to (a) "friendly relations with foreign States", (b) "public order" and (c) "incitement to an offence" and the words ."undermines the security of the State or tends to, overthrow the State".
were replaced by the words "in the interests of the security of the State".
This change could be made in view of the existing provisions of the clause as the later decision of this Court above cited 'clearly show that "public order" and "incitement to offence" were already comprehended.
The amendment was within the permissible limits as it did not abridge or take away any Fundamental Right.
The Amending Act passed by Parliament also included a sub section which read "(2) No law in force in the territory of India, immediately before the commencement of the Constitution which is consistent with the provisions of article 19 of the Constitution as amended by sub section (1) of this section shall be deemed to be void, or ever to have become void, on the ground only that being a law which takes away or abridges the right conferred by sub clause (a) of clause ( I ) of the said article, its operation was not saved by clause (2) of that article as originally enacted.
Explanation.
In this sub section, the expression "law in force" has the same meaning as in clause (1) of article 1 3 of this Constitution".
This sub section was not included in the Constitution.
That device was followed in respect of certain State statutes dealing with property rights by including them in a now Schedule.
It did not then occur to Parliament that the laws could be placed.
under a special umbrella of constitutional protection.
Perhaps it was not considered ' necessary because article 19(2) was retrospectively changed, and the, enactment of this sub section was an ordinary legislative action.
If the amendment had failed, the second subsection of section 3 would not have availed at all.
Tuming now to clause (6), we may read the original and the amended clause side by side "19(1) All citizens shall have the right= (g) to practise any profession, or to carry on any occupation, trade or business.
(1) ; 882 (6) (Before, Amendment) Nothing, in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular nothing in the said sub clause, shall affect the operation of any existing law in so far as it prescribes or empowers any authority to prescribe, or prevent the State from making any law prescribing or empowering any authority to prescribe, the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business.
(After Amendment) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause, shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, (i)the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or (ii)the carrying on by the State, or a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise, The first change is in the verbiage and is not one of substance.
It only removes some unnecessary words.
The new sub clause is innocuous except where it provides for the exclusion of citizens.
It enables nationalisation of industries and trade.
Sub clause (g) (to the generality of which the original clause (6) created some exceptions) allowed the State to make laws imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the sub clause.
A law creating restrictions can, of course, be made outside the Constitution or inside it.
If it was considered that this right in the state was required in the interests of the general public, then the exercise of the right to practise profession or to carry on an occupation, trade or business could be suitably curtailed.
It cannot be said that nationalisation is never in the interest of the general public.
This amendment was thus within the provision for restricting the exercise of the Fundamental Right in sub cl.
(g) and was perfectly in order.
The Seventh Amendment introduced certain words in article 16 (3). 'no clauses may be, compared: " 16.
(3) (Before Amendment) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under any State specified in the First Schedule or any local or other authority within its territory, any requirement as to residence within the 'State prior to such employment or appointment.
(After Amendment) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.
" 883 The change, is necessary to include a reference to Union territory.
It has no breaking upon Fundamental Rights., and, neither abridges nor, takes away any of them.
In the result none of the, amendments, of the article.
in parts other than that dealing with Right to property is, outside the amending process because article 13(2) is in no manner breached.
This brings me, to the main question in this case,, It is whether the amendments of the part Right to Property in Part, III of the Constitution were legally made or not.
To understand this part of the case I must first begin by discussing what property rights mean and how they were safeguarded by the Constitution as it was originally framed.
"Right to Property"in Part III was originally the subject of one article, namely, article 31.
Today there are three articles 3 1, 3 1 A and 31 B and the Ninth Schedule.
The original thirty first article read: "31 Compulsory acquisition of property.
(1) Nov person shall be deprived of his property save by authority of law.
(2) 'No property, movable or immovable, including any interest in or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principle on which, and the manner.
in which, the compensation is, to be determined and given.
No such law as is referred to in clause.
(2) made by the Legislature of the State shall have effect unless such law, having been reserved for the consideration of the President, has received his assent.
(4) If any Bill pending at the commencement of this Constitution in the Legislature of a State has, 'after it has been passed by such Legislature, been reserved for the consideration of the President and has received his assent, then, notwithstanding anything in this constitution, the law so assented to shall not be Called in question in any, court on the ground that it contravenes the provisions of clause (2).
(5) Nothing in clause(2) shall affect (a) the provisions of any existing law other than a law to which the provisions of clause (6) apply,.or 884 (b) the provisions of any law which the State may hereafter make (i) for the ,purpose of imposing or levying any tax or penalty, or (ii) for the promotion of public health or the prevention of danger to life or property, or (iii) in pursuance of any agreement entered into between the Government of the Dominion of India or the Government of India and the Government of .
any other country, or otherwise, with respect to property declared by law to be evacuee property.
(6) Any law of the State enacted not more than eighteen months before the commencement of this Constitution may within three months from such commencement be submitted to the President for his certification; and thereupon, if the President by public notification so certifies, it shall not be called in question in any court on the ground that it contravenes the provisions of clause (2) of this article or has contravened the provisions of sub section (2) of section 299 of the Government of India, Act, 1935".
The provisions of this article are intended to be read with article 19(1) (f) which reads "19(1) All citizens shall have the right (f) to acquire, hold and dispose of property".
Article 19 1 ) (f ) 'is subject to clause (6) which I have already set out elsewhere and considered.
Ownership and exchange of property are thus recognised by the article.
The word "property" is is not defined and I shall presently consider what may be included in 'property '.
Whatever the nature of property, it is clear that by the first clause of article 3 1 the right to property may be taken away under authority of law.
This was subject to one condition under the original article 3 1, namely, that the law must either fix the compensation for the deprivation or specify the principles on which and the manner in which compensation was to, be determined and given.
This was the heart of the institution 'of property as understood by the Constituent Assembly.
The rest of the article only gave constitutional support against the second clause, to legislation already on foot in the States.
This created a Fundamental Right in property.
The question may now be 885, asked,:why was it necessary to make such a Fundamental Right at all ? There is no natural right in property and as Burke said in his Reflections, Government is not made in virtue of natural rights, which may and do exist in total independence of it.
Natural rights embrace activity outside the status of citizen.
Legal rights are required for free existence as a social being and the State undertakes to protect them.
Fundamental Rights are those rights which the State enforces against itself.
Looking at the matter briefly but historically, it may be said that the Greeks were not aware of these distinctions for as Gierke(1) points out they did not distinguish between personality as a citizen and personality as a human being.
For them the Individual was merged in the citizen and the citizen in the State.
There was personal liberty and private law but there was no sharp division between the different kinds of laws.
The Romans evolved this gradually not when the Roman Republic existed, but when the notion of a Fiscus developed in the Empire And the legal personality of the Individual was separated from his membership of the State.
It was then that the State began to recognize the rights of the Individual in his dealings with the State.
It was Cicero(2) who was the first to declare that the ' primary duty of the Governor of a State was to secure to each individual in the possession of his property.
Here we may see a recognition of the ownership of property as a Fundamental Right.
This idea wasso engrained in early social philosophy that we find Locke opining in his Civil Government ' (Ch. 7) that "Government has no other end but the preservation of property".
The concepts of liberty, equality and religious freedom were well known.
To them was added the concept of property rights.
Later the list included "equalitas, libertas ius securitatis, ius defensionis and ius puniendi.
The concept of property right gained further support from Bentham and Spencer and Kant and Hegel(3).
The term property in its pristine meaning embraced only land but it soon came to mean much more.
According to Noyes(4)_ "Property is any protected right or bundle of rights (interest or thing) with direct, or indirect regard to any external object (i.e. other than the person himself) which is material or quasi material (i.e. a protected ,process) and which the then and there Organisation of Society permits to be either private or public, which is connoted by the legal concepts of occupying, possessing or, using".
(1) Das Doutscheg Genossenschaftrecht (III, 10).
(2) De Off.
(The Offices) It Ch.
XXI (Everyman) p. 105.
(3) W. Friedman:Legal Theory (4th Edn.) see pp.
373 376.
(4) The Institution of Property (1936) p. 436. L3Sup CI/67 11 886 The right is enforced by excluding entry or interference by a per.
son not legally entitled.
The position of the State vis a vis the individual is the subject of articles 19 and 31, 31 A and 31 B. Now in the enjoyment, the ultimate right may be an interest which is connected to the object through a series of intermediaries in which each 'holder ' from the last to the first 'holds of ' 'the holder ' before him.
Time was when there was a lot of 'free property ' which was open for appropriation.
As Noyes( ') puts it, "all physical manifestations capable of being detected, localised and identified" can be the objects of property.
One exception now made by all civilized nations is that humanbeings are no longer appropriable.
If any free property was available then it could be brought into possession and ownership by mere taking.
It has been very aptly said that all private property is a system of monopolies and the right to monopolise lies at the foundation of the institution of property.
Pound( ) in classifying right in rem puts private property along with personal integrity [right against injury to life, body and health (bodily or mental), personal liberty (free motion and locomotion)], Society and control of one 's family and dependents.
An extremely valuable definition of ownership is to be found in the Restatement of the Law of Property where it is said : "It is the totality of rights as to any specific objects which are accorded by law, at any time and place, after deducting social reservations".
This is the core from which some rights may be detached but to which they must return when liberated.
The right to property in its primordial meaning involved the acquisition, of 'a free object by possession and conversion of this possession into ownership by the protection of State or the ability to exclude interference.
As the notion of a State grew, the right of property was strong or we according to the force of political opinion backing it or the legislative support of the State.
The English considered the right as the, foundation of society.
Blackstone(&) explained it on religious; and social ground% claiming universality for it and called it the right of the English people.
William ' Paley(4),although he thought the institution paradoxical and unnatural found it full of advantage and Mackintosh in his famous diatribe against the French Revolution described it as the "sheet anchorof society".
This in"stitution ' appeared in the Magna Carta, in the American Declaration of Independence and the French Declaration of Rights of Man.
Later we find it in many (1) The Institution of Property (1936)p.
(2) Readings; p. 420. 3) Commentaries.
(4) Moral Philosophy.
887 Constitutions described as Fundamental, general and guaran teed(1).
Our Constitution accepted the theory that Right of Property is a fundamental right.
In my opinion it was an error to place it in that category.
Like the original article 16 of the Draft Bill of the Constitution which assured freedom of trade, commerce and intercourse within the territory of India as a fundamental right but was later removed, the right of property should have been placed in a different chapter.
Of all the fundamental rights it is the weakest.
Even in the most democratic of Constitutions, (namely, the West German Constitution of 1949) there was a provision that lands, minerals and means of production might be socialised or subjected to control.
article 31, if it contemplated socialization in the same way in India should not have insisted so plainly upon payment of compensation.
Several speakers warned Pandit Nehru and others of the danger of the second clause of article 31, but it seems that the Constituent Assembly was quite content that under it the Judiciary would have no say in the matter of compensation.
Perhaps the dead hand of section 299 of the Constitution Act of 1935 was upon the Constituent Assembly.
Ignored were the resolutions passed by the National Planning Committee of the Congress (1941) which had advocated the co operative principle for exploitation of land, the Resolution of 1947 that land with its mineral resources and all other means of production as well as distribution and exchange must belong to and be regulated by the Community, and the warning of Mahatma Gandhi that if compensation had to be paid we would have to rob Peter to pay Paul(2) In the Constituent Assembly, the Congress (Which wielded the majority then, as it does today) was satisfied with the Reprt of the Congress Agrarian Reforms Committee 1949 which declared itself in favour of the elimination of all intermediaries between the State and the tiller and imposition of prohibition against subletting.
The Abolition Bills were the result.
Obviously the Sardar Patel Committee on Fundamental Rights was not prepared to go far.
In the debates that followed, many amendments and suggestions to alter the draft article protecting property, failed.
The attitude was summed up by Sardar Patel.
He conceded that land would be required for public purposes but hopefully added : "not only land but so many other things may have to be acquired.
And the State will acquire them after paying compensation and not expropriate thenm".
(3) (1) Under the Constitution of Norway the rights (Odels and Asaete rights) cannot be abolished but if the State requires the owner must surrender the property and he is compensated.
(2) Gandhi : Constituent Assembly Debates Vol.
IX pp.
1204 06.
(3) Patel : Constituent Assembly Debates Vol.
I p. 517.
888 What was then the theory about Right to Property accepted by the Constituent Assembly ? Again I can only describe it historically.
Grotius(1) had treated the right as acquired right (ius quaesitum) and ownership (dominium) as either serving individual interests (vulgare) or for the public good (eminens).
According to him, the acquired right had to give way to eminent domain (ex vi auper eminentis dominii) but there must be public interest (publicautilitas) and if possible compensation.
In the social contract theory also .
the contract included protection of property with recognition of the power of the ruler to act in the public interest and emergency.
Our constitutional theory treated property rights as inviolable except through law for public good and on payment of compensation.
Our Constitution saw the matter in the way of Grotius but overlooked the possibility that just compensation may.
not be possible.
It follows almost literally the German jurist Ulrich Zasius (except in one respect) : Princeps non potest auferee mihi rem mean sive iure gentium, sive civile sit facta mea.
All would, have been well if the Courts had construed Article 31 differently.
However, the decisions of the High Courts and the Supreme Court, interpreting and expounding this philosophy took a different view of compensation.
I shall refer only to some of them.
, First the Patna High Court in.
Kameshwar vs Bihar(2) applied article 14 to strike down the Reforms Act in Bihar holding it to be discriminatory.
This need not have occasioned an amendment because the matter could have been righted, as indeed it wag, by,an appeal to the Supreme Court [see State of Bihar vs Kameshwar(3)].The Constitution (First Amendment) Act, 1951 followed.
It left article 31 intact but added two fresh articles, articles 31 A and 31 B which are respectively headed "saving of laws providing for acquisition of estates etc." and "Validation of certain Acts and Regulations" and added a schedule (Ninth) to be read with Art 31 B naming thirteen Acts of the State Legislatures.
Article 31 A was deemed always to have been inserted and article 31 B wiped out retrospectively all decisions of the courts which had.
declared any of the scheduled Acts to be invalid.
The texts of these new articles may now be seen: "31A. Saving of laws providing for acquisition of estates, etc. (1) Notwithstanding anything in foregoing provisions of this Part, no law providing for the acquisition by the State of any estate or of any rights therein or for (1) Grotius : De jure Belli ac Pacis.
11 c. 2 2 (5)6. 1 c. I 6 and II c. 14 7 and 8.
(2) A.L.R. 1951 Patna 91.
(3) 889 the extinguishment or modification of any such rights shall be deemed to be void on the: ground that it is consistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.
(2) In this article, (a) the expression "estate" shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area, and shall also include any jagir, inam or muafi or other similar grant; (b) the expression "right" in relation to an estate shall include 'any rights vesting in a proprietor, sub proprietor, tenure holder or other intermediary and any rights or privileges in respect of land revenue." "31 B. Validation of certain Acts and Regulations.
Without prejudice to the generality of the provisions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provision of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the, contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeat or amend it, continue in force '.
" Article 31 A has been a Protean article.
It has changed its face many times.
Article 31 B has remained the same till today but the Ninth Schedule has grown.
The Constitution (Fourth Amendment) Act, 1955, took the number of the Scheduled statutes to 20 and the Constitution (Seventeenth Amendment) Act, 1964 to 64 and a so called explanation which saved the application of the Proviso in article 31 A, was also added.
The device [approved by Sankari Prasad 's case(1)] was,found so (1) ; 890 attractive that many more Acts were sought to be included but were dropped on second thoughts.
Even so, one wonders how the , The West Bengal Land Development and Planning Act and some others could have been thought of in this connection.
By this device, which can be extended easily to other spheres, the Fundamental Rights can be completely emasculated by a 2/3 majority, even though they cannot be touched in the ordinary way by a unanimousvote of the same body of men! The State Legislatures may drive a coach and pair through the Fundamental Rights and the Parliament by 2/3 majority will then put them outside the jurisdiction of the courts.
Was it really intended that the restriction against the State in articles 13(2) might be overcome by the two agencies acting hand in hand ? Article 3 1 A dealt with the acquisition by the State of an .estate ' or of any rights therein or the extinguishment or modification of any such rights.
A law of the State could do these with the President 's assent, although,it took away or abridged any of the rights conferred by any provisions of Part Ill. The words 'estate ' and 'rights in relation to an estate ' were defined.
The constitutional amendment was challenged in Sankari Prasad 's case(1) on various grounds but was upheld mainly on two grounds to which I objected in Sajjan Singh 's case(2).
I have shown in this judgment, for reasons which I need not repeat and which must be read in addition to what I said on the earlier occasion, that I disagree respectfully but strongly with the view of the Court in those two cases.
This touches the first part of the amendment which created Art.31 A.
I do not and cannot question Art.31 A because (a) it was not considered at the hearing of this case, and (b) it has stood for a long time as part of the Constitution under the decision of this Court and has been acquiesced in by the people.
If I was free I should say that the amendment was not legal and certainly not justified by the reasons given in the earlier cases of this Court.
Under the original article 31, compensation had to be paid for acquisition by the State.
This was the minimum requirement of article 31 (1) and (2) and no amendment could be made by a constituted parliament to avoid compensation.
A law made by a constituted Parliament had to conform to article 13(2) and article 31 could not be ignored.
In 1954 the Supreme Court in a series of cases drew the dis tinction between article 19(1)(f) and article 31, particularly in West Bengal vs Subodh Gopal(3), Dwarkadas Srinivas vs Sholapur Spinning Co. (4).
In State of I West Bengal vs Mrs. Bela Banerjee and Others(5), this Court held a compensation in article 31(2) meant (1) ; (2) ; (3)[1954] S.CR.
(4) ; (5) 891 just equivalent, i.e. full and fair money equivalent ' thus making the adequacy of compensation justiciable.
The Constitution (Fourth Amendment) Act, 1955 then amended both article 31 and article 31 A. Clause (2) of article 31 was substituted by "(2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and other fixes the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given; and no such law shall be called in question in any court on the ground that the compensation provided by that law is not adequate".
The opening words of the former second clause were modified to make them more effective but the muzzling of courts in the matter of adequacy of the compensation was the important move.
As Basu says : "It is evident that the 1955 amendment of clause (2) eats into the vitals of the constitutional mandate to pay Compensation and demonstrate a drift from the meetings of the American concept of private Property and judicial review to which our Constitution was hitherto tied, to that of socialism.
"(1) It is appropriate to recall here that as expounded by Professor Beard (2) (whose views offended Holmes and the Times of New York but which are now being recognised after his further explanation(3) the Constitution of the United States is an economic document prepared by men who were wealthy or allied with property rights, that it is based on the concept that the fundamental rights of property are anterior to Government and morally beyond the, reach of popular majorities and that the Supreme Court of the United States preserved the property rights till the New Deal era.
The, threat at that time was to enlarge the Supreme Court but not to amend the Constitution.
It appears that the Indian Socialists charged with the idea of Marx, the Webbs, Green, Laski and others viewed property rights in a different way.
Pandit Nehru once said that he had no property sense,meaning that he did not value property at all.
The Constitution seems to have changed its property significantly.
In addition to avoiding (1) Basu : commentaries on the Constitution of India (5th Edn.) Vol.
2 p. 230.
(2) An Economic Interpretation of the United States Constitution (3) See Laski : The American democracy; Weaver : Constitutional Law, Brown: Charles Beard and the constitution; will is constitutional Law.
892 the concept of just compensation, the amendment added a new clause (2A) as follows : "(2A) Where a law does not provide for the transfer of the ownership or right to possession of, any property to the State or to a corporation owned or control led by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that ' it deprives any person of his property." This narrowed the field in which compensation was payable.
In addition to this, clause (1) of article 31 A was substituted and was deemed to be always substituted by a new clause which provided: "(1) Notwithstanding anything contained in article 13, no law providing for (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or (b) the taking over of the management of any property by the State for a limited period either in the public interest 'or in order to secure the proper management of the property, or (c) amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporation, or (d) the extinguishment or modification of any rights of 'managing agents secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or (e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31 Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved 893 for the consideration of the President, has received assent." In clause (2)(a) after the word 'grant ', the words "and in any State of Madras and Travancore Cochin any, Janmam right" were inserted 'and deemed always to have been inserted and in clause (2) (b) after the words 'tenure holder ' the words "raiyat, under raiyat" were inserted and deemed always to have been inserted.
Once again the reach of the State towards private property was made longer and curiously enough it was done retrospectively from the time of the Constituent Assembly and so to speak, in its name.
As to the retrospective operation of these, Constitutional amendment.
I entertain considerable doubt.
A Constituent Assembly makes a new Constitution for itself.
Parliament is not even a Constituent Assembly and to.
abridge fundamental rights in the name of the Constituent Assembly appears anomalous.
I am reminded of the conversation between apo leon and Abe .
Sieyes, the, great jurist whose ability to draw up one Constitution after another has been recognised and none of whose efforts lasted for long.
When Napoleon asked him "what has survived ?" Abe Sieyes answered "I have survived".
I wonder if the Constituent Assembly will be able to say the same thing What it had written or the, subject of property rights, appears to have been written on water.
The Fourth Amendment served to do away with the distinction made by this Court between articles 19 and 31 and the theory of just compensation.
The Fourth Amendment has not been challenged before us.
Nor was it challenged at any time before.
For the reasons for which I have declined to consider the First Amendment I refrain from considering the validity of the Fourth Amendment.
It may, however, be stated here that if I was free to consider it,, I would have found great difficulty in accepting that the constitutional guarantee could be abridged in this way.
I may say here that the method I have followed in not recon , sidering an amendment which has stood for a long time, was also invoked by the Supreme Court of United: States in Leser vs Garnett(1).
A constitution works only because of universal recognition.
This recognition may.
be voluntary or forced where people have lost liberty of speech.
But the acquiescence of the people is necessary for the working of the Constitution.
The examples of our neighbours, of Germany, of Rhodesia and others illustrates the recognition of Constitutions by acquiescence.
It is obvious that it is good sense and sound policy for the 'Courts to decline to take 'up an amendment for consideration after a considerable lapse of time when it was not challenged before, or was sustained on an earlier occasion after challenge.
(1) ; 894 It is necessary to pause here and see what the property rights have become under the repeated and retrospective amendments of the Constitution.
I have already said that the Constitution started with the concept of which, Grotius may ' be said to be the author, although his name is not particularly famous for theories of constitutional or municipal laws.
The socialistic tendencies which the amendments now manifest take into consideration some later theories about the institution of property.
When the original article 31 was moved by Pandit Jawaharlal Nehru, he had described it as a compromise between various approaches to the question and said that it did justice and equality not only to the individual but also to the community ' He accepted the principle of compensation but compensation as determined by the Legislature and not the Judiciary.
His words were "The law should do it.
Parliament should do it.
There is no reference in this to any judiciary coming into the picture.
Much thought has been given to it and there has been much debate as to where the judiciary comes in.
Eminent lawyers have told us that on a proper construction of this clause, normally speaking the judiciary should not come in.
Parliament fixes either the compensation itself or the principle governing that compensation and they should not be challenged except for one reason, where it is thought that there has been a gross abuse of the law, where, in fact, there has been a fraud on the Constitution.
Naturally the judiciary comes in to see if there has been a fraud on the Constitution or not.
"(1) He traced the evolution of property and observed that property was becoming a question of credit, of monopolies, that there were two approaches, the approach of the Individual and the approach of the community.
He expressed for the for protection of the indi vidual 's rights.(2) The attitude changed at the time of the First Amendment.
Pandit Nehru propheised that the basic problem would come before the House from time to, time.
That it has, there is no doubt, just as there is no doubt that each time the individual 's rights have suffered.
Of course, the growth of collectivist theories have made elsewhere considerable inroads into the right of property.
In Russia there is no private ownership of.
land and even in the Federal Capital Territory of Australia, the ownership of land is with the Crown and the individual can get a leasehold right only.
Justification for this is found in the fact that the State must benefit from (1) Constituent Assemembly Debates Vol.
IX pp.
1193 1195.
(2) Constituent Assembly Debates Vol.
IX p. 1135.
895 the rise in the value of land.
The paucity of land and of dwelling houses have led to the control of urban properties and creation of statutory tenancies.
In our country a ceiling is put on agricultural land held by an individual.
The Supreme Court, in spite of this, has not frustrated any genuine legislation for agrarian reform.
It has upheld the laws by which the lands from latifundia have been distributed among the landless.
It seems that as the Constitutions of Peru, Brazil, Poland, Latvia, Lethuania and Mexico contain provisions for such reforms, mainly without payment of compensation, our Parliament has taken the same road.
Of course, the modem theory regards the institution of proper on a functional basis(1) which means that property to be productive must be property distributed.
As many writers have said property is now a duty more than a right and ownership of property entails a social obligation.
Although Duguit(2), who is ahead of others, thinks that the institution of property has undergone a revolution, the rights of the Individual are not quite gone, except where Communism is firmly entrenched.
The rights are qualified but property belongs still to the owner.
The Seventeenth Amendment, however, seems to take us far away, from even this qualified concept, at least in so far as "estates" as defined by article 31 A.
This is the culmination of a process.
Previous to the Constitution (Seventeenth Amendment) Act the Constitution (Seventh Amendment) Act, 1956 had given power indirectly by altering entry No. 42 in List III.
The entries may be read side by side : "42.
(Before Amendment) (After Amendment) Principles on which compensation for Acquisition and requisitioning, of pro property acquired or requisitioned for perty.
the purposes of the Union or of a State or for any other public purpose is to be determined, and the form and the manner in which such compensation is to be given.
" This removed the last reference to compensation in respect of acquisition and requisition.
What this amendment began, the Constitution (Seventeenth Amendment) Act, 1964 achieved in full.
The Fourth Amendment had added to the comprehensive definition of 'right in relation to an estate, the rights of raiyats and under raiyats.
This time the expression 'estate ' in article 31 A was amended retrospectively by a new definition which reads: "the expression "estate" shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to (1) See G.W. Paton : Text Book of Jurisprudence (1964) pp.
484 485.
(2) Transformations du droit prive.
896 land tenures in force in that area, and shall also include (i) any jagir, inam or muafi or other similar grant and in the States of Madras and Kerala, any janmam right; (ii) any land held under ryotwari settlement; (iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans," The only saving of compensation is now to be found in the second proviso added to clause (1) of the article which reads "Provided further that, where any law makes any provision for the acquisition by the State of any estate.
and where any land comprised therein is held by a per , son under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for.
the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.
" There is also the provision for compensation introduced indirectly in an Explanation at the end of the Ninth Schedule, in respect of the Rajasthan Tenancy Act, 1955.
By this explanation the provisions of this Tenancy Act in conflict with the proviso last last quoted are declared to be void.
The sum total of this amendment is that except for land within the ceiling,all other land can be acquired ed or rights therein extinguished or modified without compensation and No. challenge to the law can be made under articles 14, 19 or 31 of the Constitution.
The same is also true of the taking over: of 'the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or the amalgamation of two or more companies, or the extinguishment or modification of any rights of managing agents,, secretaries, treasurers, managing directors, directors or managers, of corporations or of any voting right, of shareholders thereof any rights by virtue of an), agreement, lease, or licence for the purpose of searching for, or winning, any mineral or mineral oil, or of the premature 897 termination.
or cancellation of any such agreement, lease or licence.
It will be noticed further that deprivation of property of any person is not to be regarded as acquisition or requisition unless the benefit of the transfer of the ownership or right to possession goes to the State or to a corporation owned or controlled by the State.
Acquisition or requisition in this limited sense alone requires that it should be for public purpose and under authority of law which fixes the compensation or lays down the principles on which and.
the manner in which compensation is to be deter mined.
and given, and the adequacy of the compensation cannot be any ground of attack.
Further still acquisition of estates and of rights therein and the taking over of property, amalgamation of corporations, extinguishment or modification of rights in companies and mines may be made regardless of articles 14, 19 and 31.
In addition 64 State Acts are given special protection from the courts regardless of therein contents which 'may be in derogation of the Fundamental Rights.
This is the kind of amendment which has been upheld in Sajjan Singh(1) case on the theory of the omnipotence of article 368.
The State had bound itself not to ' enact any law in derogation of Fundamental Rights.
Is the Seventeenth Amendment a law ? To this question my answer is a categoric yes.
It is no answer to gay that this is an amendment and; therefore; not a law, or that it is passed by a special power of voting.
It is the action of the State all the same.
The State had put restraints on itself in law making whether the laws were made without Dr. within the Constitution. it is also ' no answer to say that this Court in a Bench of five Judges on one, occasion and by a majority of 3 to 2 on another, has said the,same thing.
In a. matter of the interpretation of the Constitution this Court must,look at the functioning of the Constitution as a whole.
The rules of res indicate and stare decisis are not, always appropriate in interpreting a Constitution, particularly when article 13(2) itself declares a law to be void.
The sanctity of a former judgment is for the matter then decided .
In Plessy vs Fergusson(2), Harlan, J. alone, dissented against the "separate but equal doctrine uttering the memorable words that there was no caste and that the Constitution of the United States was 'colour blind.
This dissent made some Southern Senators to oppose his grandson (Mr. Justice John Marshall Harlan) in 1954.
It took fifty eight years for the words of Harlan, J. 's lone dissent (8 to 1) to become, the law of the united states at least in respect of segregation in the public schools [See Brown vs Board of Education(3)].
As Mark Twain (1) (1965] 1 section C. R. 933.
(2)163 U. section 537.
(3) ; 898 said very truly "Loyality to a petrified opinion never yet broke a chain or freed a human soul" I am apprehensive that the erosion of the right to property may be practised against other Fundamental Rights.
If a halt is to be called, we must declare the right of Parliament to abridge or take away Fundamental Rights.
Small inroads lead to larger inroads and become as habitual as before our freedom won The history of freedom is not only how freedom is achieved but how it is preserved.
I am of opinion that an attempt to abridge or take away Fundamental Rights by a constituted Parliament even through an amendment of the Constitution can be declared void.
This Court has the power and jurisdiction to make the declaration.
I dissent from the opposite view expressed in Sajjan Singh 's(1) case and I overrule that decision.
It remains to consider what is the extent of contravention.
Here I must make it clear that since the First, Fourth and Seventh Amendments are not before me and I have not, therefore, questioned them, I must start with the provisions of articles 31, 31 A, 31 B, List III and the Ninth Schedule as they were immediately preceding the Seventeenth Amendment.
I have elsewhere given a summary of the inroads made into property rights of individuals and Corporations by these earlier amendments.
By this amendment the definition of 'estate ' was repeated for the most part but was extended to include: "(ii) any land held under ryotwari settlement; (iii) any land held or let for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans." Further reach of acquisition or requisition without adequate compensation and without a challenge under articles 14, 19 and 31 has now been made possible.
There is no kind of agricultural estate or land which cannot be acquired by the State even though it pays an illusory compensation.
The only exception is the second proviso added to article 31 A(1) by which, lands within the ceiling limit applicable for the time being to a person personally cultivating his land, may be acquired only on paying compensation at a rate which shall not be less than the market value.
This may prove: to be an illusory protection.
The ceiling may be lowered by legislation.
The State may leave the person an owner in name and acquire all his.
other rights.
The latter question did come before this Court in two cases Ajit Singh vs State of Punjab (2) (1) (1965] 1 & C. R. 933 (2) ; 899 and Bhagat Ram and Ors.
vs State of Punjab, and Ors.
(1) decided on December 2, 1966.
My brother Shelat and, I described the device as a fraud upon this proviso but it is obvious that a law lowering the ceiling to almost nothing cannot be declared a fraud on the Constitution.
In other words, the agricultural landholders hold land as tenants at will.
To achieve this a large number of Acts of the State Legislatures have been added to the Ninth Schedule to bring them under the umbrella of article 31 B.
This list may grow.
In my opinion the extension of the definition of 'estate ' to include ryotwari and agricultural lands is an inroad into the Fundamental Rights but it cannot be questioned in view of the existence of article 31 A(1) (a) as already amended.
The constitutional amendment is a law and article 31 (I) permits the deprivation of property by authority of law.
The law may be made outside the Constitution or within it.
The word 'law ' in this clause includes both ordinary law or an amendment of the Constitution.
Since "no law providing for the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such 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 19 or article 31", the Seventeenth Amendment when it gives a new definition of the word 'estate cannot be questioned by reason of the Constitution as it exists.
The new definition of estate introduced by the amendment is beyond the reach of the courts not because it is not law but because it is "law" and falls within that word in article 31 (1) (2) (2 A) and article 31 A(1).
1, therefore, sustain the new definition, not on the erroneous reasoning in Sajjan Singh 's case (2 ) but on the true construction of the word 'law ' as used in articles 13(2), 31(1)(2 A) and 31 A(1).
The above reason applies a fortiori to the inclusion of the proviso which preserves (for the time being) the notion of compensation for deprivation of a cultural property.
The proviso at least saves something.
It prevents the, agricultural lands below the ceiling from being appropriated without payment of pro per compensation.
It is clear,that the proviso at least cannot be held to abridge or take away fundamental rights.
In the result I uphold the second section of the Constitution (Seventeenth Amendment) Act, 1964.
This brings me to the third section of the Act.
That does no more than add 44 State Acts to the Ninth Schedule.
The object of article 31 B, when it was enacted, was to save certain State Acts notwithstanding judicial decision to the contrary.
These Acts were already protected by article 31.
One can with difficulty understand such a provision.
Now the Schedule is being used to (1) 11967] 2 section C. R. 165.
(2) ; 900 give advance protection to legislation which is known appre hended to derogate from the Fundamental Rights.
The power under article 368, whatever it may be, was given to amend the Constitution.
Giving.
protection to statutes of State Legislatures which offend the Constitution in its most fundamental part, can hardly merit the description amendment of the Constitution in fact in so cases it is not even known whether the statues in question stand in need of such aid.
The intent is to silence the courts and not to amend the Constitution.
If these Acts were ', not included in the Schedule they would have to face the Fundamental Rights and rely on articles 31 and 31 A to save them.
By this device protection far in excess of 'these articles is afforded to them.
This in my judgment is not a matter of amendment at all.
The power which is given is for the specific purpose of amending the Constitution and not to confer validity on State Acts against the rest of the Constitution.
If the President 's assent did not do this, no more would this section.
I consider section 3 of the Act., to be invalid as an illegitimate exercise of the powers .
of amendment however generous.
Ours is the only Constitution in the world which carries a long list of ordinary laws which it protects against itself,.
In the result I declare section 3 to be ultra vires the amending process.
As stated by me in Sajjan Singh 's case(1) article 368 outlines process, which if followed strictly results in the amendment of the Constitution.
The article gives power to no particular person or persons.
All the named authorities have to act according to the letter of the article to achieve the result.
The procedure of, amendment, if it can be called a 'power at all is a legislative power but it is sui generi and outside the three lists in Schedule 7 of the Constitution. 'It does 'not ' have to depend.
upon any entry,in the lusts.
Ordinarily there would be no limit to the extent of the , amendatory legislation but.
the Constitution itself makes distinctions.
It states three methods and places certain bars.
For some amendments an ordinary, majority fs sufficient; for some others 'a 2/3rd majority of the, members present and voting with a majority of the total members, in each House is necessary: and for some others in addition to the second requirement, ratification by at least one,half of the legislatures of the States must be forthcom ing.
Besides these methods, article 13(2) puts an embargo on the legislative power of the State and consequently upon the agencies of the State.
By its means the boundaries of legislative action of any of including legislation to amend the Constitution have been marked out.
(1) [1965]1 S.C.R 933.
901 I have attempted to show hem that under our Constitution revolution is not the only alternative to change of Constitution under article 368.
A Constitution can. be changed by consent or, revolution Rodee, Anderson and Christol (1) have shown the sovereignty of the People is either electoral or constituent.
When the People elect the Parliament and the Legislatures they exercise their electoral sovereignty.
I includes some constituent sovereignty also but only in so far as conceded.
The remaining constituent sovereignty which is contained in the Preamble and Part III is in abeyance because of the curb placed by the People on the state under article 13(2).
It is this power which can be reproduced.
I have indicated the method.
Watson(2) quoting Ames On Amendments p. 1 note 2) points out that the idea that provision should be made in the instrument of Government itself for the method of its amendment is peculiarly American.
But even in the Constitution of the United States of America some matters were kept away from the amendatory process Other temporarily or permanently.
Our Constitution has done the same .
Our Constitution provides for minorities, religions, socially and educationally backward peoples, for ameliorating the condition of depressed classes, for removing class distinctions, titles, etc.
This reservation was made so that in the words of Madison(3), men of factious tempers, of local prejudices, or sinister designs may not by intrigue, by corruption, or other means , first obtain the suffrages and then betray the interests of the people.
It was to plug the loophole such as existed in section 48 of the Weimar Constitution( 4) that article 13 (2) was.
adopted.
of course, as.
Story( ' ') says, an amendment process is a safety valve to, let off all temporary effervescence and excitement, as an effective instrument to control and adjust the Movements of the machinery when out of order or in danger of self d tion but is not an open valve to let, out ' even that which was intended to be retained.
In the words of Wheare(6) the people or a Constituent Assembly acting on their behalf, has authority to enact a Constitution and by the same token a portion of the Constitution placed outside the amenditory process by one Constituent body can only be amended by another Constituent body.
In the Commonwealth of, Australia Act the provisions of the last Paragraph of section 128 have been regarded as, mandatory, and held to be clear limitations of the power of amendment.
Dr. Jethro Brown considered that the amendment of the paragraph was logically impossible even by a two step amendment.
Similarly, section 105 A has been judicially (1) Introduction to Political Science, p. 32 et seq.
(2) Constitution" Its History, Application and Construction Vol.
II (1910) p. 1301.
(3) Federalist No. 10.
(4) See Louis L. Snyder: The Weimar Constitution, p. 42 et seq.
(5) Commentaries on the Constitution of the United States (I 833) Vol.
(6) K. C. Wheare: Modern Constitutions, p. 78.
sup Cl/67 12 902 considered in the Garnishee case( ') to be an exception to the power of amendment in section 128 although Wynes(2) does not agree.
I prefer the judicial view to that of Wynes.
The same position obtains under our Constitution in article 35 where the opening words, are more than a non obstante clause.
They exclude article 368 and even amendment of that article under the proviso.
It is, therefore, a grave error to think of article 368 as a code ;Dr as omnicompetent.
It is the duty of this Court to find the limits which the Constitution has set on the amendatory power and to enforce those limits.
This is what I have attempted to do in this judgment.
My conclusions are (i) that the Fundamental Rights are outside the amendatory process if the amendment seeks to abridge or take away any of the rights; (ii) that Sankari Prasad 's case (and Sajjan Singh 's case which followed it) conceded the power of amendment over Part III of the Constitution on an erroneous view of articles 13(2) and 368; (iii) that the First, Fourth and Seventh Amendments being part of the Constitution by acquiescence for a long time, cannot now be challenged and they contain authority for the Seventeenth Amendment; (iv) that this Court having now laid down that Fundamental Rights cannot be abridged or taken away by the exercise of amendatory process in article 368, any further inroad into these rights as they exist today will be illegal and unconstitutional unless it complies with Part III in general and article 13(2) in particular, (v) that for abridging or taking away Fundamental Rights, a Constituent body will have to be, convoked; and (vi) that the two impugned Acts, namely, the Punjab Security of Land Tenures Act, 1953 (X of 1953) and the Mysore Land Reforms Act, 1961 (X of 1962) as amended by act XIV of 1965 are valid under the Constitution not because they are included in schedule 9 of the Constitution but because the, are protected by article 31 A, and the President 's assent.
(1) ; (2) Legislative, Executive and Judicial Powers in Australia pp.
695 698.
903 In view of my decision the several petit ions will be dismissed, but without costs.
The State Acts Nos.
21 64 in the Ninth Schedule will have to be tested under Part HI with such protection as articles 31 and 31 A give to them.
Before parting with this case I only hope that the Fundamental Rights will be able to withstand the pressure of textual readings by "the depth and toughness of their roots".
Bachawat, J The constitutionality of the Constitution First, Fourth and Seventeenth Amendment Acts is challenged on the . ground that the fundamental rights conferred by Part HI are inviolable and immune from amendment.
It is said that article 368 does not give any power of amendment and, in any event, the amending power is limited expressly by article 13(2) and impliedly by the language of article 368 and other articles as also the preamble.
It is then said that the power of amendment is abused and should be subject to restrictions.
The Acts are attacked also on the ground that they made changes in articles 226 and 245 and such changes could not be made without complying with the proviso to article 368.
Article 31 B is subjected to attack on several other grounds.
The constitutionality of the First Amendment was upheld in Sri Sankari Prasad Singh Deo vs Union, of India and State of Bihar(1), and that of the Seventeenth amendment, in Sajjan Singh is that these cases were Part XX of the Constitution specifically provides for its amendment.
It consists of a single article .
Part XX is as follows "PART XX.
Amendment of the Constitution Procedure for amendment of the Constitution 368.
An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill the Constitution shall stand amended in accordance with the terms of the Bill : Provided that if such amendment seeks to make any change in (a) article 54.
article 55, article 73, article 162 or (1) ; (2) ; 1196712 S.C.IL 904 (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter 1 of Part XI, or (c) any of the Lists in the Seventh Schedule, or (d) the representation of States in Parliament, or (e) the provisions of this article, the amendment shall also require to be ratified by the Legislatures of not less than one half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.
" The contention that article 368 prescribes only the procedure of amendment cannot be accepted.
The article not only prescribes the procedure but also gives the power of amendment.
If the procedure of art.368 is followed, the Constitution "shall stand amended" in accordance with the terms of the bill.
It is because the power to amend is given by the article that the Constitution stands amended.
The proviso is enacted on the assumption that the several articles mentioned in it are amendable.
The object of the proviso is to lay down a stricter procedure for amendment of the articles which would otherwise have been amendable under the easier procedure of the main part.
There is no other provision in the Constitution under which these articles can be amended.
Articles 4, 169, Fifth Schedule Part D, and Sixth Schedule Para 21 empower the Parliament to.
pass laws amending the provisions of the First, Fourth, Fifth and Sixth Schedules and making amendments of the Constitution consequential on the abolition or creation of the legislative councils in States, and by express provision no such law is deemed to be an amendment of the Constitution for the purposes of article 368.
All other provisions of the Constitution can be amended by recourse to article 368 only.
No other article confers the power of amending the Constitution.
Some articles are expressed to continue until provision is made by law [see articles 59(3), 65(3), 73(2), 97, 98(3), 106, 135, 142(1), 148(3), 149, 171(2), 186, 187(3), 189(3), 194(3), 195, 221(2), 283(1) and (2), 285, 313, 345, 372(1), 373].
Some articles continue unless provision is made otherwise by law [see articles 120(2), 133(3), 210(2) and some continue save as otherwise provided by law [see articles 239(1), 287].
Some articles are subject to the provisions of any law to be made [see articles 137, 146(2), 225, 229(2), 241(3), 300(1), 309], and some are expressed not to derogate from the power of making laws [see articles 5 to 11, 289(2)].
All these articles are transitory in nature and cease to operate when provision is made by law on the subject.
None of them can be regarded as conferring 905 the power of 'amendment of the Constitution.
Most of articles continue until provision is made by law made by the Parliament.
But some of them continue until or unless provision is made by the State Legislature (see articles 189 (3), 194 (3), 195, 210(2), 229(2), 300(1), 345) or by the appropriate legislature (see articles 225, 241(3)); these articles do not confer a power of amendment, for the State legislature cannot amend the Constitution.
Many of the above mentioned articles and also other articles (see articles 22(7), 32(3), 33 to 35, 139,140, 239A, 241, 245 to 250, 252, 253, 258(2), 286(2), 302, 307, 315(2), 327, 369 delegate powers of making laws to the legislature.
None of these articles gives the power of amending the Constitution.
It is said that article 248 and List 1 item 97 of the 7th Schedule read with article 246 give the Parliament the power of amending the Constitution.
This argument does not bear scrutiny.
article 248 and List I item 97 vest the residual power of legislation in the Parliament.
Like other powers of legislation, the residual power of the Parliament to make laws is by virtue of article 245 subject to the provisions of the Constitution.
No law made under the residual power can derogate from the Constitution or amend it.
If such a law purports to amend the Constitution, it will 'be void.
Under the residual power of legislation, the Parliament has no power to make any law with respect to any matter enumerated in Lists II and III of the 7th Schedule but under article 368 even Lists II and III can be amended.
The procedure for constitutional amendments under article 368 is different from the legislative procedure for passing laws under the residual power of legislation.
If a constitutional amendment could be made by recourse to the residual power of legislation and the ordinary legislative procedure, article 368 would be meaningless.
The power of amending the Con stitution is to be found in article 368 and not in article 248 and List I item 97.
Like other Constitutions, our Constitution makes express provisions for amending the Constitution.
The heading of article 368 shows that it is a provision for amendment of the Constitution, the marginal note refers to the procedure for amendment and the body shows that if the procedure is followed, the Constitution shall stand amended by the power of the article.
Chapter VIII of the Australian Constitution consists of a single section (section 128).
The heading is "Alteration of the Constitution".
The marginal note is "Mode of altering the Constitution".
The body lays down the procedure for alteration.
The opening words are : "This Constitution shall not be altered except in the following manner".
Nobody has doubted that the section gives the power of amending the Constitution.
Wynes in his book on Legislative Executive and Judicial Powers in Australia, third edition, 906 p. 695, stated "The power, of amendment extends to alteration of this Constitution ' which includes section 128 itself.
It is true that section 128 is negative in form, but the power is impled by the terms of the section.
" Article 5 of the United States Constitution provides that a proposal for amendment of the constitution by the Congress on being ratified by the three fourth of the states "shall be valid to all intents and purposes as part of this Constitution".
The accepted view is that "power to amend the Constitution was reserved by article 5", Per Van Devanter, J, in Rhode Island vs Palmer(1): Art .368 uses stronger words.
On the passing of the bill for amendment under article 368, "the Constitution shall stand amended in accordance with the terms of the bill".
Article 368 gives the power of amending "this Constitution".
This Constitution means any of the provisions of the Constitution.
No limitation on the amending power can be gathered from the language of this article.
Unless this power is restricted by some ,other provision of the Constitution, each and every part of the Constitution may be amended under article 368.
AR the articles mentioned in the proviso are necessarily within this amending power.
From time to time major amendments have been made in the articles mentioned in the proviso (see articles 80 to 82, 124 (2A),131,214,217(3),222,(k2) 224A,226(IA) 230,231,241 and Seventh Schedule) and other articles (see articles 1, 3, 66, 71, 85, 153.
158, 170, 174, 239, 239A, 240, 258A, 2,69, 280, 286, 290A, 291, 298, 305, 311, 316, 350A, 350B, 371, 371A, 372A, 376, 379 to 391, the first third and fourth schedules), and minor amendments have been made in innumerable articles.
No one has doubted so far that these articles are amendable.
Part III is a part of the Constitution and is equally amendable.
It is argued that a Constitution Amendment Act.is a law and therefore the power of amendment given by article 368 is limited by article 13(2).
, article 13(2) is in these terms: "13(1). . . . . . . (2) The State shall not make any law which takes away or abridges the tights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void." Now article 3 68 gives, the power of amending each and every provision of the Constitution article 13 (2) is a part of the Constitution and is within the reach of the amending power.
In other words art 13 (2) is subject to the overriding power of an. 368 and is controlled by it.
article 368 is not controlled by article 13 (2) and the (1) ; : ; 907 prohibitory injunction in article 13(2) is not directed against the amending power Looked at from this broad angle, article 13 (2) does not forbid the making of a constitutional amendment abridaing or taking away any right confesed by Part III.
Let us now view the matter from a narrower angle.
The con tention is that a constitutional amendment under article 368 is a law within the meaning of article 13.
1 am inclined to think that this narrow contention must also be rejected.
In article 13 unless the context otherwise provides 'law ' includes any ordinance, order, bye law, rule, regulation, notification, custom or usage having in the territory of India the force of law [article 13(3).(a)].
The inclusive definition of law in article 13 (3) (c) neither expressly excludes nor expressly includes the Constitution or a constitutional amendment.
Now the term law ' in its widest and generic sense includes the Constitution and a constitutional amendment.
But in the constitution this term is employed to designate an ordinary statute or legislative act in contradistinction to the Constitution or a constitutional amendment.
The Constitution is the basic law providing the framework of government and creating the organs for the making of the laws.
The distinction between the Constitution and the laws is so fundamental that the Constitution is not regarded as a law or a legislative act.
The Constitution means the Constitution as amended.
An amendment made in conformity with article 368 is a part of the.
Constitution and is likewise not a law.
The basic theory of our Constitution is that it cannot be changed by a law or legislative Act.
It is be cause special provision is made by articles 4, 169, Fifth Schedule Part D and Sixth Schedule para 21 that some parts of the Constitution are amendable by ordinary laws.
But by express provision no such law is deemed to be a constitutional amendment.
Save as express.1y provided in articles 4, 169, Fifth Schedule Part D and Sixth Schedule para 21, no law can amend the Constitution, and a law which purports to make such an amendment is void.
In Marbury vs Madison(1), Marshall, C.J., said: "It is a proposition too plain to be contested, that the Constitution controls any legislative Act repugnant to it; or, that the legislature may alter the Constitution by an ordinary Act.
Between these alternatives there is no middle ground.
The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with (1) ; ,177:.
; , 73.
908 Ordinary legislative Acts, and, like other Acts, is alter able when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative Act contrary to the Constitution is not law; if the, latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an Act of the Legislature, repugnant to the Constitution, is void.
This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society.
" It is because a Constitution Amendment Act can amend the Constitution and is not a law that article 368 avoids all reference to law making by the Parliament.
As soon as a bill is passed in conformity with article 368 the Constitution stands amended in accordance with the terms of the bill.
The power of amending the Constitution is not an ordinary law making power.
It is to be found in article 368 and not in articles 245, 246 and 248 and the Seventh Schedule.
Nor is the procedure for amending the Constitution under article 368 an ordinary law making procedure.
The common feature of the amending process under art, 368 and the legislative procedure is that a bill must be passed by each House of Parliament and assented to by the President.
In other respects the amending process under article 368 is very different from the ordinary legislative proms.
A constitution amendment Act must be initiated by a bill introduced for that purpose in either House of Parliament.
The bill must be passed in each House by not less than two thirds of the members present and voting, the requisite quorum in each House being a majority of its total membership; and in cases coming under the proviso, the amendment must be ratified by the legislature of not less than one half of the States.
Upon the bill so passed being assented to by the President, the Constitution stands.
amended in accordance with the terms of the bill.
The ordinary legislative process is much easier.
A bill initiating a law may be passed by a majority of the members present and voting at a sitting of each House or at a joint sitting of the Houses, the quorum for the meeting of either House being one tenth of the total number of members of the House.
The bill so passed on being assented to by the President becomes a law.
A bill though passed by all the members of both Houses cannot take effect as a 909 Constitution amendment Act unless it is initiated for the express purpose of amending the Constitution.
The essence of ,a written Constitution is that it cannot be changed by an ordinary law.
But most written Constitutions Provide for their organic growth by constitutional amendments.
The main method of constitutional amendments are (1) by the ordinary legislature but under certain restrictions, (2) by the people through a referendum, (3) by a majority of all the units of a Federal State; (4) by a special convocation, see C.F. strong Modem Political institutions, 5th Edition, pp.
133 4,146.
Our Constitution hag by article 368 chosen the first and a combination of the first and the third methods.
The special attributes of constitutional amendment under article 368 indicate that it is not a law or a legislative act.
Moreover it will be seen presently that the Constitution makers could not have intended that the term "law" in article 13 (2) would include a consti tutional amendment under article 368.
If a constitutional amendment creating a new fundamental right and incorporating it in Part III were a law, it would not be open to the.
parliament by a subsequent constitution to abrogate the new fundamental right for such an amendment would be repugnant to Part ]III.
Bit the conclusion is absurd for.
the body which created the right can surely take it away by the same process.
Shri A. K. Sen relied upon a decision of the Oklahoma Supreme Court in Riley vs Carter(1) where it was held that for some purposes the Constitution of a State was one of the laws of the State.
But even in America, the term "law ' does not ordinary include the Constitution or a constitutional amendment in this connection, I will read the following passage in Corpus Juris Secundum, Vol, XVI Title Constitutional Law article .lm15 "The term 'constitution ' is ordinarily employed to designate the organic law in contradistinction to the term law, which is generally used to designate statutes Or legislative enactments.
Accordingly the term 'law. ' under this distinction does not include a constitutional amendment.
However, the term "law ' may, in accordance with the context in which it is used, comprehend or included the constitution or a constitutional provision or amendment.
A statute and a constitution, although of unequal dignity,, are both 'laws ', and rest on the will of the people." (1) 88 A:A.L.R. 1008.
910 In our Constitution, the expression "law" does not include either the constitution or a constitutional amendment.
For all these reasons we must hold that a constitutional amendment under article 368 is not a law within the meaning of article 13 (2).
I find no conflict between articles 13(2) and 368.
The two articles operate in different fields.
article 13(2) operates on laws; it makes no express exception regarding a constitutional amendment, because a constitutional amendment is not a law and is outside its purview.
article 368 occupies the field of constitutional amendments.
It does not particularly refer to the, articles in Part III and many other articles, but on its true construction it gives the power of amending each and every provision of the Constitu tion and necessarily takes in Part III.
Moreover, article 368 gives the power of amending itself, and if express power for amending the provisions of Part III were needed, such a power could be taken by an amendment of the article.
It is said that the non obstante clause in article 35 shows that the article is not amendable.
No one has amended article 35 and the point does not arise.
Moreover, the non obstante clause is to be found in articles 258(1), 364, 369, 370 and 371A.
No one has suggested that these articles are not amendable.
The next contention is that there are implied limitations on the amending power.
It is said that apart from article 13 (2) there are expressions in Part III which indicate that the amending power ,cannot touch Part III.
Part III is headed " fundamental rights".
The right to move the Supreme Court for enforcement of the rights conferred by this Part is guaranteed by article 32 and cannot be suspended except as otherwise provided for by the Constitution (article 32(4)).
It is said that the terms "fundamental" and "guarantee" indicate that the rights conferred by Part HI are not amendable.
The argument overlooks the dynamic character of the Constitution.
While the Constitution is static, it is the fundamental law of the country, the rights conferred by Part III are, fundamental, the right under article 32 is guaranteed, and the principles of State policy enshrined in Part IV are fundamental 'm the governance of the country.
But the Constitution is never at rest; it changes with the progress of time.
article 368 provides the means for the dynamic changes in the Constitution.
The scale cf values embodied in Parts III and IV is not immortal.
Parts III and IV being parts of the Constitution are not immune from amendment under article 368.
Demands for safeguards of the rights embodied in Part III and IV may be traced to the Constitution of India Bill 1895, the Congress Resolutions between 1917 and 1919, Mrs. Beasan 's Commonwealth of India Bill of 1925, the Report of the Nehru Committee set up under the Congress Resolution in 1927, the Congress 911 Resolution of March.
1931 and the Sapru Report of 1945.
The American bill of rights,the constitutions of other countries the declaration of human rights by the United Nations and other declarations and charters gave impetus to the demand.
In this background the Constituent Assembly embodied in preamble to the Constitution the resolution to secure to all citizens social, economic and political justice, liberty of thought, expression, belief, faith and worship, equality of status and opportunity and fraternity assuring the dignity of the individual and the unity of the nation and incorporated safeguards as to some human rights in Parts III and IV of the Constitution after separating them into two parts on the Irish model.
Part III contains the passive obligations of the State.
It enshrines the right of life, personal liberty, expression, assembly, movement, residence, avocation, property, culture and education, constitutional remedies, and protection against exploitation and obnoxious penal laws.
The State shall not deny these rights save as provided in the Constitution.
Part IV contains the active obligations of the State.
The State shall secure a social order in which social, economic and political justice shall inform all the institutions of national life.
Wealth and its source of production shall not be concentrated in the hands of the few but shall be distributed so as to subserve the common good, and there shall be adequate means of livelihood for all and equal pay for equal work.
The State shall endeavour to secure the health and strength of workers, the right to work, to education and to assistance in cases of want, just and humane conditions of work, a living wage for workers, a uniform civil code, free and compulsory education for children.
The State shall take steps to organize village panchayats, promote the educational and economic interests of the weaker sections of the people, raise the level of nutrition and standard of living, improve public health.
organize agricultural and animal husbandry separate the judiciary from executive and promote international peace and security.
The active obligations of the State under Part IV are not justiciable.
If a law made by the State in accordance with the fundamental directives of Part IV comes in conflict with the fundamental rights embodied in Part II the law to the extent of repugnancy is void.
Soon after the Constitution came into force, it became apparent that laws for agrarian and other reforms for implementing the directives of Part IV were liable to be struck down as they infringed the provisions of Part III.
From time to time constitutional amendments were proposed with the professed object of validating these laws, superseding certain judicial inter pretations of the Constitution and curing defects in the original Constitution.
The First, Fourth, Sixteenth and Seventeenth Amendments made important changes in the fundamental rights.
The First amendment introduced cl.
(4) in article 15 enabling the State to make special provisions for the benefit of the socially and 912 educationally backward class of citizens, the,scheduled castes and the scheduled tribes in derogation of articles 15 and 29,(2) with a view to implement article 46 and to supersede the decision in State of Madras vs Champakam(1), substituted a new cl.
(2) in article 19 with retrospective effect chiefly with a view to be in public order within the permissible restrictions and to supersede the decisions in Romesh Thappar vs State of Madras( '), Brij Bhushan vs State of Delhi( '),, amended cl.
(6) of article 19 with a view to free state trading monopoly from the test of reasonable ness and to supersede the decision in Moti Lal vs Government of State of Uttar Pradesh().
Under the stress of the First amendment it is now suggested that Champakam 's case( '), Romesh Thappar 's case( ') and Motilal 's(4) case were wrongly decided, and the amendments of articles 15 and 19 were in harmony with the original Constitution and made no real change in it.
It is to be, noticed however that before the First amendment no attempt was made to overrule these cases, and but for the amendments, these judicial interpretations of the Constitution would have continued to be the law of the land.
The Zamindari Abolition Acts were the subject of bitter attack by the zamindars.
The Bihar Act though protected by cl. 6 of article 31 from attack under article 31 was struck down as violative of article 14 by the Patna High Court (see the State of Bihar vs Maharajadhiraj Sri Kameshwar Singh(5), while the Uttar Pradesh Act (see Raja Surya Pal Singh vs The State.
of U.P.) (6) and the Madhya Pradesh Act (see Visweshwar Rao vs State.of Madhya Pradesh (7), though upheld by the High Courts were under challenge in this Court.
The First amendment therefore introduced article 31A, 31B and the Ninth Schedule with a view to give effect to the policy of agrarian reforms, to secure distribution of large blocks of land in the hands of the zamindars in conformity with article 39, and to immunize specially 13 State Acts form attack under Part Ill. The validity of the First Amendment was upheld in Sri Sankari Prasad Singh Deo 's case(8).
The Fourth amendment changed article 31(2) with a view to supersede the decision in State of West Bengal vs Bela Banerjee(9) and to provide that the adequacy of compensation for property compulsorily acquired would not be justiciable, inserted Cl.
(2A) in article 31 with a view to supersede the decisions in the State of West Bengal vs Subodh Gopal Bose("), Dwarka Das Shrinivas vs Sholapur Spinning and Weaving Co., Ltd.,("), (1) ; (2) ; (3) ; (4) I.L.R. [1951] 1 All.
(5) 1951 Pat. 91).
(6) (1952] S.C.R. 1056 (A.I.R. 1961).
(7) All. 674.) (8) ; (9) ; (10) 11954] S.C.R. 587.(11) ; 913 Saghir Ahmad vs The State of Uttar Pradesh,(1) and to make it clear that clauses (1) and (2) of article 31 relate to different subject ' matters and a deprivation of property short of transference of ownership or right to possession to the State should not be treated as compulsory acquisition of property.
The Fourth amendment also amended article 31A with a view to protect certain laws other than agrarian laws and to give effect to the policy of fixing ceiling limits on land holdings and included seven more Acts in the Ninth Schedule.
One of the Acts (item 17) though upheld in Jupiter General Insurance Co. vs Rajgopalan(2) was the subject of criticism in Dwarka Das 's case (3 ) .
The Sixteenth amendment amended clauses (2), (3) and (4) of article 19 to enable the imposition of reasonable restrictions in the interest of the sovereignty and integrity of India.
The Seventeenth amendment amended the definition of estate in article 31A with a view to supersede the decisions in Karimbil Kunhikoman vs State of Kerala (4 ) and A. P. Krishnaswami Naidu vs State of Madras( ') and added a proviso to article 31A and included 44 more Acts in the Ninth Schedule, as some of the Acts had been struck down as unconstitutional.
The validity of the Seventeenth amendment was upheld in Sajjan Singh 's case( ').
Since 1951, numerous decisions of this Court have recognised the validity of the First, Fourth and Seventeenth amendments.
If the rights conferred by Part III cannot be abridged or taken away by constitutional amendments, all these amendments would be invalid.
The Constitution makers could not have intended that the rights conferred by Part TIT could not be altered for giving effect to the policy of Part TV.
Nor was it intended that defects in Part III could not be cured or that possible errors in judicial interpretations of Part III could not be rectified by constitutional amendments.
There are, other indications in the Constitution that the fundamental rights are not intended to be inviolable.
Some of the articles make express provision for abridgement of some of the fundamental rights by law (see articles 16(3), 19(1) to (6), 22(3), 23(2), 25(2), 28(2), 31(4) to (6), 33, 34).
Articles 358 and 359 enable the suspension of fundamental rights during emergency.
Likewise, article 368 enables amendment of the Constitution including all the provisions of Part Ill. It is argued that the preamble secures the liberties grouped together in Part III and as the preamble cannot be amended, Part III is not amendable.
The argument overlooks that the preamble is mirrored in the entire Constitution.
, If the rest of the Constitution is amendable, Part III cannot stand on a higher (1) [1954) S.C.R. 1218.
(3) ; ,706.
(5) ; (2) A.I.R. 1952 Pun.
(4) [1962] Supp.
I S.C.R. 829.
(6) ; 914 control the unambiguous language of the articles of the Constitution, see ' Wynes, Legislative Executive and Judicial Powers in Australia third edition, pp.
694 5; in Re Berubari Union & Exchange of Enclaves(").
The last case decided that the Parliament can under article 368 amend article 1 of the Constitution so as to enable the cession of a part of the national territory to a foreign power, The Court brushed aside the argument that "in the transfer of the areas of Berubari to Pakistan the fundamental rights of thousands of persons are involved.
" The case is an authority for the proposition that the Parliament can lawfully make a con stitutional amendment under article 368 authorising cession of a part of the national territory and thereby destroying the fundamental rights of the citizens of the Effected territory, and this power under article 368 is not limited by the preamble.
It is next argued that the people of India in exercise of their sovereign power have placed the fundamental rights beyond the reach of the amending power.
Reliance is place on the following passage in the judgment of Patanjali Sastri, J., in A. K. Gopalan V.
The State of Madras(2): "There can be no doubt that,the people of India have, in exercise of their sovereign will as expressed in the Preamble, adopted the democratic ideal which assures to the citizen the dignity of the, individual and other cherished human values as a means to the full evolution and expression of his personality, and in delegating to the Legislature the executive and the Judiciary their respective powers in the Constitution, reserved to themselves certain fundamental rights, so called, I apprehend, because they have been retained by the people and made, paramount to the delegated powers, as in the American Model.
" I find nothing in the passage contrary to the view unequivocally expressed by the same learned Judge in Sri Sankari Prasad Singh Deo 's(3) case that the fundamental rights are amendable.
The power to frame the Constitution was vested in the Constituent Assembly by section 8 (1 ) of the Indian Independence Act, 1947. 'The Constitution though legal in its origin was revolutionary in character and accordingly the Constituent Assembly exercised its powers of framing the Constitution in the name of the people.
The objective resolution of the Assembly passed on January 22, 1947 (1) ,261 2,281 (2)[1950] S.C.R. 88, 98.
(3) (1952] S.C.R. 89.
915 solemnly declared that all power and authority of sovereign independent India, its constituent parts, and organs and the Government were derived from the people.
The preamble to the Constitution declares that the people of India adopts, enacts and gives to themselves the Constitution.
In form and in substance the Constitution emanates from the people.
By the Constitution.
the people constituted themselves into a republic.
Under the republic all public power is derived from the people and is exercised by functionaries chosen either directly or 'indirectly by the people.
The Parliament can exercise only such powers as are delegated to it under the Constitution.
The people acting through the Constituent Assembly reserved for themselves certain rights and liberties and ordained that they shall not be curtailed by ordinary legislation.
But the people by the same Con stitution also authorised the Parliament to make amendments to, the Constitution.
In the exercise of the amending power the Parliament has ample authority to abridge or take away the fundamental rights under Part III.
It is urged that the word 'amend ' imposes the limitation that an amendment must be an improvement of the Constitution.
Reliance is placed on the dictum in Livermore vs E. C. Waite(1): "On, the other hand, the significance of the term 'amendment ' implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed." Now an attack on the eighteenth amendment of the U.S. Constitution based on this passage was brushed aside by the U.S. Supreme Court in the decision in the National Prohibition(2) case.
The decision totally negatived the contention that "an amendment must be confined in its scope to, an alteration or improvement of that which is already contained in the Constitution and cannot change its basic structure, include new grants of power to the Federal Government nor relinquish, in the State those which already have been granted to it", see Cooley on Constitutional Law, Chapter III article 5, pp.
46 & 47.
1 may also read a passage from Corpus Juris Secundum Vol.
XVI, title 'Constitutional Law, p. 26 thus : "The term 'amendment a , used in the constitutional article giving Congress a power of proposal includes additions to, as well as corrections of, matters.
already treated, and there is nothing there which suggests that it is used in a restricted sense.
" Article 368 indicates that the term "amend" means "change".
The proviso is expressed to apply to amendments which seek to make any "change" in certain articles.
The main part of article 368 (1) (2) Rhode Island vs Palmer 253 U.S. 350 : 64 L. ed.
947, 960, 978.
916 thus gives the power to amend or to make changes in the Constitution.
A change is not necessarily an unprovement.
Normally the change is made with the object of making an improvement, but the experiment may fail to achieve the purpose.
Even the plain dictionary meaning of the word "amend" does not support the contention that an amendment must take an improvement, see Oxford English Dictionary where the word "amend" is defined thus : "4. to make professed improvements (in a measure before Parliament); formally to alter 'in detail, though practically it may be to alter its principle so as to thwart it.
" The 1st, 4th, 16th and.
17th Amendment Acts made changes in Part III of the Constitution.
All the changes are authorized by article 368.
It is argued that under the amending power, the basic features .,of the Constitution cannot be amended.
Counsel said that they could not give an exhaustive catalogue of the basic features, but sovereignty, the republican form of government the federal structure and the fundamental rights were some of the features.
The Seventeenth Amendment has not derogated from the sovereignty, ,the republican form of government and the federal structure, and 'the question whether they can be touched by amendment does not arise for decision.
For the purposes of these cases, it is sufficient to say that the fundamental rights are within the reach of the amending power.
It is said that in the course of the last 16 years there have been numerous amendments in our Constitution whereas there have been very few amendments of the American Constitution during 'the last 175 years.
Our condition is not comparable with the American.
The dynamics of the social revolution in our country may require more rapid changes.
Moreover every part of our Constitution is more easily amendable than the American.
Alan Gledhill in his book "The Republic of India", 1951 Edition, pp. 74 & 75 , said: "The Indian Founding, Fathers were less determined than were their American predecessors to impose rigidity on their Constitution. . . .
The Indian Constitution assigns different degrees of rigidity to its different parts, but any part of it can be more easily amended than the American Constitution.
" It is said that the Parliament is abusing its power of amendment by making too many frequent changes.
If the Parliament 'has the power to make the amendments, the choice of making any particular amendment must be left to it.
Questions of policy cannot be debated in ' this Court.
The possibility of, abuse of a power is not the test of its existence.
In Webb vs Outrim(1) lord (1) 917 Hobhouse said, "If they find that on the due construction of the Act a legislative power falls within section 92, it would be quite wrong of them to deny its existence because by some possibility it may be abused, or limit the range which otherwise would be open to the Dominion Parliament".
With reference to the doctrine of implied prohibition against the exercise of power ascertained in accordance with ordinary rules of construction, Knox C.J., in the Amalgamated Society of Engineers vs The Adelaide Steams Company Limited and others(1) said, "It means the necessity of protection against the aggression of some outside and possibly hostile body.
:It is based on distrust, lest powers, if once conceded to the least degree, might be abused to the point of destruction.
But possible abuse of powers is no reason in British law for Emiting the natural force of the language creating them The historical background in which the Constitution was framed shows that the ideas embodied in Part III were not intended to be immutable.
The Constituent Assembly was corn of representatives of the provinces elected by,the members of the lower houses of the provincial legislatures and representatives of the Indian States elected by electoral colleges constituted by the rules.
The draft Constitution was released on February 26, 1948While the Constitution was on the anvil it was envisaged the, future Parliaments would be elected on the basis of adult suffrage.
Such a provision was later incorporated in article 326 of the Constitution.
In a special article written on August 15, 1948, Sir B., N. Rau remarked: "It seems rather illogical that a constitution should be settled by a simple majority by an assembly elected indirectly on a very limited franchise and that it should not be capable of being amended in the same way by a Parliament elected and perhaps for the most Part elected directly by adult suffrage", (see B. N. Rau ' India 's Constitution in the making, 2nd Edition p. 394).
The conditions in India were rapidly changing and the country was in a state of flux politically and economically.
Sir B. N. Rau therefore recommended that the Parliament should be empowered to amend the Constitution by its ordinary law making process for at least the first five years.
Earlier, para 8 of the Suggestions of the Indian National Congress of May 12, 1946 and para 15 of the Proposal of the Cabinet Mission of May 16, 1946 had recom mended similar powers of revision by the Parliament during the initial years or at stated intervals.
The Constituent Assembly did not accept these recommendations.
On September 17, 1949 an amendment (No. 304) moved by Dr. Deshmukh providing (1) ; ,151.
Cf/67 13 918 for amendment of the Constitution at any time by a clear majority in each house of Parliament was negatived.
The Assembly was conscious that future Parliaments, elected on the basis of adult suffrage would be more representative, but they took the view that article 368 provided a sufficiently flexible machinery for amending all part , of the Constitution.
The Assembly never entertain the proposal that any part of the Constitution including Part III should be beyond the reach of the, amending power.
As a matter of fact, Dr. Deshmukh proposed an amendment (No. 212) habiting any amendment of the rights with respect to property or otherwise but on September 17, 1949 he withdrew this proposal (we Constituent Assembly Debates Vol.
IV pp.
1 642 43).
The best exposition of the Constitution is that which it has received from contemporaneous judicial decisions and enactments.
We find a rare unanimity of view among Judges and legislators from the very commencement of the Constitution that the fundamental rights are within the reach of the amending power.
No one in the Parliament doubted this proposition when the Constitution First Amendment Act of 1951 was passed.
It is remarkable that most of the members of this Parliament were also.
members of the Constituent Assembly.
In, section Krishnan and Others vs The state of Madras(1), a case decided on May 7, 1951 Bose, J. said: "My concept of a fundamental right is something which Parliament cannot touch save by an amendment of the Constitution".
, In Sri Sankari Prasad Singh Deo 's case(2), decided on October 5, 1951, this Court expressly decided that fundamental rights could be abridged by a constitutional amendment.
This view was acted upon in all the subsequent decisions and was reaffirmed in Sajjan Singh 's case(3).
Two learned Judges then expressed some doubt but even they agreed with the rest of the Court in upholding the validity of the amendments.
A static system of.
laws is the worst tyranny that any constitution can impose upon a country.
An unamendable constitution means that all.
reform and progress are at a standstill.
If Parliament cannot amend Part III of the Constitution even by recourse to article 368, no other power can do so.
There is no, provision in the Constitution for calling a convention for its revision or for submission of any proposal for amendment to the referendum.
Even if power to call a convention or to submit a proposal.
to the refere be taken by amendment of article 368, Part III.
would sip remain unamendable on the assumption that a constitutional amendment is a law.
Not even the unanimous vote of the 500 (1) ; , 652.
(2) ; (3) ; 919 million citizens or their representatives, at a special convocation could amend Part III.
The deadlock could be resolved by revolution only.
Such a consequence was not intended by the framers of the Constitution.
The Constitution is meant to endure.
It has been suggested that the Parliament may provide for another Constituent Assembly by amending the Constitution and that Assembly can amend Part III and take away or abridge "the fundamental rights.
Now if this proposition is correct, a suitable amendment of the Constitution may provide that the Parliament will be the Constituent Assembly and there upon the Parliament may amend Part III.
If so, I do not see why under the Constitution as it stands now, the Parliament cannot be regarded as a recreation of the Constituent Assembly.
for the special purpose of making a constitutional amendments under article 368, and why the amending power cannot be regarded a a constituent power as was held in Sri Sankari Prasad Singh Deo 's (1) case.
The contention that the constitutional amendments of Part III had the effect (I changing articles 226 and 245 and could not be passed without complying with the proviso to article 368 is not tenable; A constitutional amendment which does not profess to amend article 226 directly or by inserting or striking words therein cannot be regarded as seeking to make, any change in it and thus falling within the constitutional inhibition of the proviso.
article 226 gives power to the High Court throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority within those territories directions, orders and Writs for the enforcement of any of the rights conferred by Part III and for any purpose The Seventeenth Amendment made no direct change in article 226.
It made changes in Part In and abridged or took away some of the rights conferred by that Part.
As a result of the changes, some of those rights no longer exist and as the High Court cannot issue writs for the enforcement of those rights its power under article 226 is affected incidentally.
But an alteration in the area of its territories or in the number of persons or authorities within those territories or in the number of enforceable rights under Part III or other rights incidentally affecting the Power of the High Court under article 226 cannot be regarded as an ' amendment of that article.
article 245 empowers the Parliament and the Legislatures of, the States to make laws subject to the provisions of the Constitution.
This power to make laws is subject to the limitations imposed by Part M.
The abridgement of the rights conferred by Part III by the Seventeenth Amendment necessarily enlarged the scope of the legislate power, and thus affected article 245 indirectly.
But the Seventeenth amendment made no direct change in article 145 and did not amend it.
(1) ; 920 Art 3 1B retrospectively validated the Acts mentioned in the Ninth Schedule notwithstanding any judgment decree or order of any court though they take away or abridge the rights conferred by Part Ill. It is said that the Acts are still bom and cannot be validated.
But by force of article 31B the Acts are deemed never to have become void and must be regarded as valid from their inception.
The power to amend the Constitution carries with it the power to make a retrospective amendment.
It is Said that article 3 1B amends article 141 as it alters the law declared by this Court on the validity of the Acts.
This argument is baseless.
As the Constitution is amended retrospectively, the basis upon which the judgments of this Court were pronounced no longer exists, and the law declared by this Court can have no application.
It is said that article 3 1B is a law with respect to land and other matters within the competence of the State Legislature, and the Parliament has no power to enact such a law.
The argument is based on a misconception.
The Parliament has not passed any of the Acts mentioned in the Ninth Schedule.
article 3 IB removed the constitutional bar on the making of the Acts.
Only the Parliament could remove the bar by the Constitution amendment.
It has done so by article 3 1 B.
The Parliament could amend each article in Part III separately and provide that the Acts would be protected from attack under each article.
Instead of amend ing each article separately, the Parliament has by article 3 1 B made a comprehensive amendment of all the articles by providing that the Acts shall not be deemed to be void on the ground that they are inconsistent with any of them.
The Acts as they stood on the date of the Constitution Amendments are validated.
By the last part of article 31B the competent legislatures will continue to the power to repeal or amend the Acts.
The subsequent repeals and amendments are not validated.
If in future the competent legislature passes a repealing or amending Act which is inconsistent with Part III it will be void.
I have, therefore, coma to the conclusion that the First, Fourth, Sixteenth and Seventeenth Amendments are constitutional and am not void.
If so, it is common ground that these petitions must be For the last 16 years the validity of constitutional amendments of fundamental rights have been recognized by the people and all the organs of the government 'including the legislature, the judiciary and the executive.
Revolutionary, social and economic changes have taken place on the strength of the First, Fourth and Seventeenth Amendments.
Even if two views were possible on the question of, the validity of the amendments, we should not now reverse our previous decisions and pronounce them to be invalid.
Having heard lengthy arguments on the question I have 921 come to the conclusion that the validity of the constitutional amendments was rightly upheld in Sri Sankari Prasad Singh Deo 's(1) and Sajjan Singh 's(2) cases and I find no reason for over ruling them.
The First, Fourth and Seventeenth amendment Acts are sub jected to bitter attacks because they strike it the entrenched property rights.
But the abolition of the zemindari was a necessary reform.
It is the First Constitution Amendment Act that made this reform possible.
No legal argument can restore the outmoded feudal zemindari system.
What has been done cannot be undone.
The battle for the past is lost.
The legal argument necessarily shifts.
The proposition now is that the Constitution Amendment Acts must be recognized to be valid in the past but they must be struck down for the future.
The argument leans on the ready made American doctrine of prospective overruling.
Now the First, Fourth, Sixteenth and Seventeenth Amendment Acts take away and abridge the rights conferred by Part M.
If they are laws they are necessarily rendered void by article 13(2).
If they are void, they do not legally exist from their very inception.
They cannot be valid from 1951 to 1967 and invalid thereafter.
To say that they were valid in the past and will be invalid in the future is to amend the Constitution.
Such a naked power of amendment of the Constitution is not given to the Judges.
The argument for the petitioners suffers from a double fallacy, the first that the Parliament has no power to amend Part III so as to abridge or take away the entrenched property rights, and the second that the Judges have the power to make such an amend ment.
I may add that if the First and the Fourth amendments are valid, the Seventeenth must necessarily be valid.
It is not possible to say that the First and Fourth amendments though originally invalid have now been validated by acquiescence.
If they infringed article 13(2),t they were void from their inception.
Referring to the 19th amendment of the U.S. Constitution, Brandeis, J. said in Leser vs Garnett(3) "This Amendment is in character and phraseology precisely similar to the 15th.
For each the same method of adoption was pursued.
One cannot be valid and the other invalid.
That the 15th is valid, although rejected by six states, including Maryland, has been recognized and acted on for half a century. .
The suggestion that the 15th was incorporated in the Constitution, (1) ; (2) [1965] 1 S.C.R. 933.
(3) ; : ; , 51 1.
922 not in accordance with law, but practically as a war measure, which has been validated by acquiescence, cannot be entertained.
" Moreover the Seventeenth amendment has been acted upon and its validity has been upheld by this Court in Sajjan Singh 's case.
If the First and the Fourth Amendments are validated by acquiescence, the Seventeenth is equally validated.
Before concluding this judgment I must refer to some of the speeches made by the members of the Constituent Assembly in the course of debates on the draft Constitution.
These speeches cannot be used as aids for interpreting the Constitution.
See State of Travancore Cochin and others vs The Bombay Co. Ltd.( ' ).
Accordingly, I do not rely on them as aids to construction.
But I propose to refer to them, as Shri A K. Sen relied heavily on the speeches of Dr. B. R. Ambedkar.
According to him, the speeches of Dr. Ambedkar show that he did not regard the fundamental rights as amendable.
This contention is not supported by the speeches.
Sri Sen relied on the following passage in the speech of Dr. Ambedkar on September 17, 1949 "We divide the articles of the Constitution under three categories.
The first category is the one which consists of articles which can be, amended by Parliament by a bare majority.
The second set of articles are articles which require two thirds majority.
If the future Parliament wishes to amend any particular article .which is not mentioned in Part III or article 304, all that is necessary for them is to have two thirds majority.
They can amend it.
Mr. President : Of Members present.
Now, we have no doubt put articles in a third .category where for the purposes of amendment the .mechanism is somewhat different or double.
It requires two thirds majority plus ratification by the, States.
"(2) I understand this passage to mean that according to Dr. Am bedkar an amendment of the articles mentioned in Part.
III and 368 requires two thirds majority plus ratification by the States He seems to have assumed (as reported) that the provisions of Part III fall within the. proviso to article 368.
But he never said that part III was s not amendale.
He maintained consistently that all the articles of the Constitution are amendable under article 368 On November 4, 1948, be.
said : "The second means adopted to avoid rigidity and legalism is the provision for facility with which the (1) (1952] S.C.R. 1112.
(2) Constituent Assembly Debat Vol.
IX p. 1661.
923 Constitution could be amended.
The provisions of the Constitution relating to the amendment of the Constitution divide the Articles of the Constitution into two groups.
In the one group are placed Articles relating to (a) the distribution of legislative powers between the Centre and the States, (b) the representation of the States in Parliament, and (c) the powers of I the Courts.
All other Articles are placed in another group.
Articles placed in the second group cover a very large part of the Constitution and can be amended by Parliament by a double majority, namely, a majority of not less than two thirds of the members of each House present and voting and by a majority of the total membership of each House.
The amendment of these Articles does not require ratification by the States.
It is only in those Articles which are placed in group one that an additional safeguard of ratification by the States is introduced.
One can therefore safely sky that the Indian Federation will not suffer from the faults of rigidity or legalism.
Its distinguishing feature is that it is a flexible Federation.
The provisions relating to amendment of the Constitution have come in for a virulent attack at the hands of the critics of the Draft Constitution.
it is said that the provisions contained in the Draft make amendment difficult.
It is proposed that the Constitution should be amendable by a simple majority at least for some.
years.
The argument is subtle and ingenious.
It is said that this Constituent Assembly is not elected on adult suffrage while the future Parliament will be elected on adult suffrage and yet the former has been given the right to pass the Constitution by a simple majority while 'the latter has been denied the same right.
It is paraded as one of the absurdities of the Draft Constitution.
I must repudiate the charge because it is without foundation.
To know how simple are the provisions of the Draft Constitution in respect of amending the Constitution one has only to study the provisions for amendment contained in the American and Australian Constitutions. 'Compared to them those contained in the Draft Constitution will be found to be the simplest. 'The Draft Constitution has eliminated the elaborate and difficult procedures such as a decision by a convention or are ferenduni.
The Powers of amendments left with the Legislatures Central and Provincial.
It is only, for amendment , or specific matters and they are only few, that the ratification of the State Legislatures is required.
924 All other Articles of the Constitution are left to be amended by Parliament.
The only limitation is that it shall be done by a majority, of not less than two thirds of the members of each House present and voting and a majority of the total membership of each House.
It is difficult to conceive a simpler method of amending the Constitution."(, ') On December 9, 1948 , Dr. Ambedkar said with reference to article 32: "The Constitution has invested the Supreme Court with these rights and these writs could not be taken away unless and until the Constitution itself is amended by means left open to the legislature.
"(2) On November 25, 1949, Dr. Ambedkar strongly refuted the suggestion that fundamental rights should ' be absolute and unalterable.
He said: "The condemnation of the Constitution largely comes from two quarters, the Communist Party and the Socialist Party. .
The second thing that the Socialists want is that the Fundamental Rights mentioned in the Constitution must be absolute and without any limitations so that if their Party comes into power, they would have the unfettered freedom not merely to criticize, but also to overthrow the State. .
Jefferson, the great American statesman who played so great a part in the making of the American Constitution, has expressed some very weighty views which makers of Constitution can never afford to ignore.
In one place, he has said: 'We may consider each generation as a distinct nation, with a right, by the will of the majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country.
In another place, he has said: 'The idea that institutions established for the use of the nation cannot be touched or modified, even to make them answer their end, because of rights gratuitously supposed in those employed to manage the min the trust for the public, may perhaps be a Salutary provision against the abuses of a monarch, but is most absurd against the nation itself.
Yet our lawyers and priests generally inculcate this doctrine, and suppose that preceding generations held the earth more freely than we do; had a right to impose laws on us, unalterable by ourselves, and (1) Constituent Assembly Debates Vol. 7, pp.
35 6, 43 4.
(2) Constituent Assembly Debates Vol. 7, 953. 925 that we, in the like manner, can make laws and impose burdens on future generations, which they will have no right to alter; in fine, that the earth belongs to the dead and not the living.
I admit that what Jefferson has said is not merely true, but is absolutely true.
There can be no question about it.
Had the Constituent Assembly departed from this principle laid down by Jefferson it would certainly be liable to blame, even to condemnation.
But I ask, has it? Quite the contrary.
One has only to examine the provision relating to the amendment of the Constitution.
The Assembly has not only refrained from putting a seal of finality and infallibility upon this Constitution by denying to the people the right to amend the Constitution as in Canada or by making the amendment of the Constitution subject to the fulfilment of extraordinary terms and conditions as in America of Australia but has provided a most facile procedure for amending the Constitution.
I challenge any of the critics of the Constitution to prove that any Constituent Assembly anywhere in the world has, in the circumstances in which this country finds itself, provided such a facile procedure for the amendment of the Constitu tion.
If those who are dissatisfied with the Constitution have only to obtain a 2/3 majority and if they cannot obtain even a two thirds majority in the parliament elected on adult franchise in their favour, their dissatisfaction with the Constitution cannot be deemed to be shared by the general public. '(1) On November 11, 1948, Pandit Jawahar Lal Nehru said: "And remember this, that while we want this Constitution to be as solid and as permanent a structure as we can make it, nevertheless there is no permanence in Constitutions.
There should be a certain flexibility.
If you make anything rigid and permanent, you stop a Nation 's growth, the growth of living vital organic people.
Therefore it has to be flexible.
"(2) The views of Jefferson echoed by Ambedkar and Nehru were more powerful expressed by Thomas Paine in 1791 "There never did, there never will, and there never can, exist a parliament, or any description of men, or any generation of men, in any country, possessed of the (1) Constituent Assembly Debates Vol.
I 1, pp.
975 6.
(2) Constituent Assembly Debates Vol. 7, p. 322.
926 right or the power of binding and controuling posterity to the end of time ', or of commanding for ever how the world.
shall be governed, or who shall govern it , and therefore all such clauses, acts or declarations by which the makers of them attempt to do what they have neither the right nor the power to do, nor take power to execute, are in themselves null and void.
Every age and generation must be as free to act for itself in all cases as the ages and generations which preceded it.
The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies.
Man has no property in man; neither has any generation a property in the generations which are to follow.
The parlia ment of the people of 1688 or of any other period, had no more right to dispose of the people of the present day, or to bind or to controul them in any shape whatever, than the parliament or the people of the present day have to dispose of, bind or controul those who are to live a hundred or a thousand years hence.
Every Generation is, and must be, competent to all the purposes which its occasions require.
It is the living, and not the dead, that are to be accommodated.
When man ceases to be, his power and his wants cease with him; and having no longer any participation in the concerns of this World, he has no longer any authority in directing who shall be its governors, or how its government shall be organized, or how administered." (See 'Rights of Man ' by Thomas Paine, unabridged edition by H. B. Bonner, pp. 3 & 4).
For the reasons given above, I agree with Wanchoo, J. that the writ petitions must be dismissed.
In the result, the writ petitions are dismissed without costs.
Ramaswami, J. I have perused the judgment of my learned Brother Wanchoo, J. and I agree with his conclusion that the Constitution (Seventeenth Amendment) Act, 1964 is legally valid, but in view of the importance.of the constitutional issues raised in this case I would prefer to state, my own reasons in a separate judgment.
In these petitions which have been filed under article 32 of the Constitution, a common question arises for determination, viz.,.
whether the Constitution (Seventeenth Amendment) Act, 1964 which amends article 31 A and 3 1 B of the Constitution is ultra vires and unconstitutional, .
927 The petitioners are affected either by the Punjab Security of Land Tenures Act, 1954.
(Act X of 1953) or by the Mysore Land Reforms Act (Act 10 of 1962) as amended by Act 1 1965 which were added to the 9th Schedule of the Constitution by the impugned Act and, their contention is that the impugned Act being unconstitutional and invalid , the validity of the two Acts by which they are affected cannot be saved.
The impugned Act consists of three sections.
The first section.
gives its short title.
Section 2 (i) adds a proviso to Cl. ( 1 ) of article 3 I A after the existing proviso.
This proviso reads, thus: "Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof." Section 2(ii) substitutes the following sub clause for sub cl.
(a) of cl.
(2) of article 31 A "(a) the expression 'estate ' shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating force in that area and all to land tenures in also include (i) any jagir, inam or muafi or other similar grant and in the States of Madras and Kerala, any ianmam right; (ii) any land held under ryotwari settlement; (iii) any land held or let for purposes of agriculture or for purposes ancillary there to, including wast land, forest land, land for posture or ones of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans;" Section 3 amends the 9th Schedule by adding 44 entries to it.
In dealing with the question about the validity of the im pugned Act, it is necessary to consider the scope and effect of the provisions contained in article
368 of the Constitution, because the main controversy in the present applications turns upon:the 928 decision of the question as to what is the construction of that Article.
Article 368 reads as follows: "An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill .
Provided that if such amendment seeks to make any change (a) Article 5, article 55, article, 73, article 162 or article 241, or (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or (c) any of the Lists in the Seventh Schedule, or (d) the representation of States in Parliament, or (e) the provisions of this article, the amendment shall also require to be ratified by the Legislatures of not less than one half of the States by resolutions to that effect passed by those.
Legislatures before the Bill making provision for such amendment is presented to the President for assent.
" It is necessary at this stage to set out briefly the history of articles . 31 A and 31 B. These Articles were added to the Constitution with retrospective effect by section 4 of the Constitution (First Amendment) Act, 1951.
Soon after the promulgation of the Constitution, the political party in power, commanding as it did a majority of votes in the several State legislatures as well as in Parliament, carried out radical measures of agrarian reform in Bihar, may be referred to as Zamindari Abolition Acts.
Certain zamindars, feeling themselves aggrieved, attacked the validity of those Acts in courts of law on the ground that they contravened the 'fundamental rights conferred on them by Part III of the Constitution.
The High Court of Patna held that the Act passed iii Bihar was unconstitutional while the High Courts of Allahabad and Nagpur upheld the validity of the corresponding legislation in Uttar Pradesh and Madhya Pradesh respectively (See Kameshwar Uttar Pradesh and Madhya Pradesh by enacting legislation which 929 vs State of Bihar(1) and Surya Pal vs U.P. Government(1).
The parties aggrieved by these respective decisions had filed appeals by special leave before this Court.
At the same time petitions had also been preferred before this Court under article 32 by certain other Zamindars, seeking the determination of the same issues It was atstage that the Union Government, with a view to put an endall this litigation and to remedy what they considered to be certain defects brought to light in the work of the Constitution, brought forward a bill to amend the Constitution, which,.
after undergoing amendments in various particulars, was passed by the require majority as the Constitution (First Amendment) Act, 1951 by which articles 31 A and 31 B were added to the Constitution.
That was the first step taken by Parliament to assist the process of legislation to bring about agrarian reform, by introducing Articles 31 A and 31 B.
The second step in the same direction was taken by Parliament in 1955 by amending article 31 A by the Constitution (Fourth Amendment) Act, 1955.
The object of this amendment was to widen the scope of agrarian reform and to confer on the legislative measures adopted in that behalf immunity from a possible attack that they contravened ' the fundamental rights of citizens.
In other words, the amendment Protected the legislative measures in respect of certain other items of agrarian and social welfare legislation, which affected the proprietary rights of certain citizens.
At the time when the first amendment was made, article 31 B expressly provided that none, of the, Acts and Regulations specified in the 9th Schedule, nor any of the provisions thereof, shall be deemed to be void or ever to have become void on the ground that they were inconsistent with or took: away or abridged any of the rights conferred by Part III, and it added that notwithstanding any judgment, decree or order of any Court or tribunal to the contrary, each of the said Acts and Regulations shall subject to the power of any competent legislature to repeal or amend, continue in force.
At this time, 19 Acts were listed in Schedule 9, and they were thus effectively validated.
One more Act was added to this list by the Amendment Act of 1955, so that as a result of the second amendment, the Schedule contained 20 Acts which were validated.
It appears that notwithstanding these amendments, certain other legislative measures adopted by different States for the purpose of giving effect to the agrarian policy of the party in power, were effectively challenged.
For instance, the Karimbil Kunhikoman vs State of Kerala(3), the validity of the Kerala Agrarian Relations Act (IV of 1961) was challenged by writ petitions filed under article 32, and as a result of the majority decision of this Court, the whole Act was struck down.
The decision of this (1) A I R. 1951 Pat. 91 (2) A.I.R. 1951 All. 674.
(3)[1962] Supp.
1 S.CR. 829. 930 Court was pronounced on December 5, 1961.
In A. P. Krishna swami Naidu vs The State of Madras(1) the constitutionality of the Madras Land Reforms (Fixation of Ceiling on Land) Act (146.
58 of 1961) was the subject matter of debate, and by the decision of this Court pronounced, on March 9, 1964, it was declared that the whole Act was invalid.
It appears that the Rajas than Tenancy Act III of 1955 and the Maharashtra Agricultural Lands (Ceiling and Holdings) Act 27 of 1961 had been similarly declared invalid, and in consequence, Parliament thought it necessary to make a further amendment in Art: 31 B so as to gave the validity of these Acts which had been struck down and of other similar Acts which were likely to be challenged.
With that object in view, the impugned Act has enacted section 3 by which 44 Acts have been added to Schedule 9.
It is therefore clear that the object of the First, Fourth and the Seventeenth Amendments of the Constitution was to help the State Legislatures to give effect to measures of agrarian reform in a broad and comprehensive sense in the interests of a very large section of Indian ,citizens whose social and economic welfare closely depends on the persuit of progressive agrarian policy.
The first question presented for determination in this case is whether the impugned Act, in so far as it purports to take away or abridge any of the fundamental rights conferred by Part III .or the Constitution,falls within the prohibition of article 13 (2) which provides that "the State, 'shall, not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall to the extent of the Contravention, be void".
In other words, the argument, of the petitioners was that the law to which Art, 13(2) applies, would include a law passed by Parliament by virtue of its constituent power to amend the Constitution, and so, its validity will have.
to be tested by article 13(2) itself.
It was contended that the State" includes Parliament within article 12 and "law" must include, a constitutional amendment.
It was said that it was the deliberate intention of the framers of the Constitution, who realised the sanctity of the fundamental rights conferred by Part III, to make them immune from interference not only by ordinary laws passed by the legislatures in the country but also from constitutional amendments.
In my opinion, there is no substance in this argument.
Although "law" must ordinarily include constitutional law, there is 'a juristic distinction between ordinary law made in exercise of legislative power and constitutional law which is Made in exercise of constituent power.
In a written federal form of Constitution there is a clear and well known distinction between the law of the Constitution and ordinary law made by the legislature on the basis of separation of powers and (1)[1964]7 S.C.R.82.
931 pursuant to the power of law making conferred by the Consti tution (See Dicey on 'Law of the Constitution, Tenth: Edn.
p. 110, Jennings, 'Law and the Constitution ' pp.
62 64, and 'American Jurisprudence ', 2nd Edn.
16, p. 181).
In such a written Constitution, the amendment of the Constitution is .a substantive, constituent act which is made in the exercise, of the sovereign power which created the Constitution and which is effected by a special means, namely, by a predesigned fundamental procedure unconnected with ordinary legislation.
The amending power under article 368 is hence sui generis and cannot be, compared to the law making power of Parliament pursuant to article 246 read with List I and 111.
It follows that the expresSion "law" in article 13(2) of the Constitution cannot be construed as including an amendment of the Constitution which is by Parliament in exercise of, its sovereign constituent power, but must mean law made by Parliament in its legislative capacity :pursuant to the powers of law making given by the Constitution itself under article 246 read with Lists I and In of the 7th Schedule.
It is also clear, on the same line of reasoning, that 'law ' in article 13(2) cannot be construed so as to include 'law ' made by Parliament under articles 4, 169, 392, 5th Schedule Part D and 6th Schedule para 2 1.
The amending power of Parliament exercised under these Articles stands on the same as the constitutional amendment made under article U8 so far as article 13(2) is concerned and does not fall within the definition of law within the meaning of this last article.
It is necessary to add that the definition of 'law ' in article 13(3) does not include in terms a constitutional amendments though it includes "any Ordinance,, order, bye law, rule, regulation, notification, custom or usage ".
It should be noticed that The language.
of article 3 6 8 is perfectly general and empowers Parliament to amend the Constitution without any exception Whatsoever.
H I ad it been intended by the Constitution makers that the fundamental rights guaranteed under Part III should be completely outside the scope of article 368, it is reasonable to assume that they would have made an express provision to that effect.
It was stressed by the petitioners during the course 'of the, argument that Part III is headed as 'Fundamental Rights" and that article 32 "guarantee 's ' the right to move the Supreme Court by appropriate proceedings for enforcement of rights conferred by Part M.
But the expression "fundamental" in the phrase "Fundamental Rights" means that such rights are fundamental vis a vis the laws of the legislatures and the acts of the executive authorities mentioned in article 12.
It cannot be suggested, that the expression "fundamental" lifts the fundamental rights above the Constitution itself.
Similarly, the expression "guaranteed ' in article 32(1) and 32(4) means that the right to move the Supreme Court for enforcement of fundamental rights without 932 exhausting the, normal channels through the High Courts or the lower courts is guaranteed.
This expression also does not place the fundamental rights above the Constitution.
I proceed to consider the next question arising in this case, the scope of the amending power under article 368 of the Constitution.
It is contended on behalf of the petitioners that article 368 merely lays down the procedure for amendment and does not vest the amending power as such in any agency constituted under that article.
I am unable to accept this argument as correct Part XX of the Constitution which contains only article 368 is described as a Part dealing with the Amendment of the Constitution and article 368 which prescribes the procedure for amendment of the Constitution, begins by saying that an amendment of this Constitution may be initiated in the manner therein indicated.
In MY Opinion, the expression "amendment of the Constitution" in article 368 plainly and unambiguously means amendment of all the provisions of the Constitution.
It is unreasonable to suggest that what article 368 provides is only the mechanics of the procedure to be followed in amending the Constitution without indicating which provisions of the Constitution can be amended and which cannot.
Such a restrictive construction of the substantive part of article 368 would be clearly untenable.
The significant fact , that a separate Part has been devoted in the Constitution for "amendment of the Constitution and there is only one Article in that Part shows that both the power to amend and the procedure to amend are enacted in article 368.
Again, the words "the Constitution shall stand amended in accordance with the terms of the Bill" in article 368 clearly contemplate and provide for the power to amend after the requisite procedure has been followed.
Besides, the words used in the proviso unambiguously indicate that the substantive part of the article applied to all the provisions of the Constitution.
It is on that basic assumption that the proviso prescribes a specific procedure in respect of the amendment of ,the articles mentioned in cls.
(a) to (e) thereof.
Therefore it must be held that when article 368 confers on Parliament the right to amend the Constitution the power in question can be exercised over all the provisions of the Constitution.
How the power should be exercised, has to be determined by reference to the question as to whether the proposed amendment falls under the substantive part of article 368, or whether it attracts the procedure contained in the proviso.
It was suggested for the petitioners that the power of amendment is to be found in articles 246 and 248 of the constitution read with item 97 of List I of the 7th Schedule.
I do not think that it is possible to accept this argument.
Article 246 stats that 933 Parliament has exclusive power to make laws with respect to matters enumerated in List I in the Seventh Schedule, and article 248, similarly, confers power on Parliament to make any law with respect to any matter not enumerated in the Concurrent List or State List.
But the power of law making in articles 246 and 248 is "subject to the provisions of this Constitution".
It is apparent that the power of constitutional amendment cannot fall within these Articles, because it is illogical and a contradiction in terms to say that the amending power can be exercised and at the same time it is "subject to the provisions of, the Constitution".
It was then submitted on behalf of the petitioners that the amending power under article 368 is subject to the doctrine of implied limitations.
In other words, it was contended that even if article 368 confers the power of.
amendment, it was not a general but restricted power confined only to the amendable provisions of the Constitution, the amendability of such provision being determined by the nature and character of the respective provision.
It was argued, for instance, that the amending power cannot be used to abolish the compact of the Union or to destroy the democratic character of the Constitution teeing individual and minority rights.
It was said that the Constitution was a permanent compact of the States, that the federal character of the States was individual, and that the existence of any.
of the States as part of the federal Compact Cannot4be put an end to by the power of amendment.
It was also said that the chapter of fundamental rights of the Constitution cannot be the subject matter of any amendment under article 368.
It was contended that the preamble to the Constitution declaring that India was a sovereign democratic republic was beyond the scope of the amending Power.
it, was suggested that other basic, features of the Constitution were the Articles relating to.
distribution of legislative powers, the Parliamentary form of Government and the establishment of Supreme Court and the High, Courts in the various States.
I am unable to accept this argument as correct.
If the Constitution makers considered that there were certain basic features of the Constitution which were permanent it.
is must unlikely that they should not have expressly said in Art 368 that these basic features were.
not amendable.
On the contrary, the Constitution makers have expressly provided.
that article 368 itself should be amendable by the process indicated in the proviso to that Article.
This cir cumstance is significant and suggests.
that all the articles of the Constitution are amendable either under the proviso to article 368 or under the main part of that Article.
In MY opinion, there is no room for an.
implication in the construction of article 368.
So far as the federal character of the Constitution is concerned, it was held by this Court in State of West Bengal vs Union of Cl/67 14 934 India(1) that the federal structure is not an essential pan of our Constitution and there is no compact between the States and them is no dual citizenship in India.
It was pointed out in that case that there was no constitutional guarantee against the alteration of boundaries of the States.
By An. 3 the Parliament is by law authorised to form a new State by redistribution of the territory of a. State or by uniting two or more States or parts of States or by uniting any territory to a part of any State, to increase the area of any State, to diminish the area of any State to alter the boundaries of any State, and to alter the name of any State.
In In Re The Berubari Union and Exchange of Enclaves (2) it was argued that the Indo Pakistan agreement with regard to Berubari could not be implemented even by legislation under article 368 because of the limitation imposed by the preamble to the Constitution and that such an agreement could not be implemented by a referendum.
The argument was rejected by this Court and it was held that the preamble could not, 'in i any way, limit the power of Parliament to cede parts of the national territory.
On behalf of the petitioners the argument was s that the chapter on fundamental rights was the basic feature, of the Constitution and cannot be the subject of the amending power under Art 368.
It was argued that the freedoms of democratic life are secured by the chapter on fundamental rig its and dignity of the individual cannot be preserved if any of the fundamental rights is altered or diminished.
It is not possible to accept this argument as correct.
The concepts of liberty and equality are changing and dynamic and hence the notion of permanency or immutability cannot be attached to any of the fundamental rights.
The Directive Principles of Part IV are as fundamental as the constitutional rights embodied in Part III and article 37 imposes a constitutional duty upon the States to apply these principles in making laws.
Reference should in particular be made to article 39(b) which enjoins upon the State to direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good.
article 3 8 imposes a duty upon, the State to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
I have already said that the language of article 368 is clear and unambiguous in support of, the view that there is no implied limitation on the amending power.
In Principle also it aPPears unreasonable to suggest that the Constitution makers wanted to provide that the fundamental rights guaranteed by the Constitution should never be touched by way of, amendment.
In modern democratic thought I there are two main trends the liberal idea of individual 'rights (1) [1964] 1 S.C.R. 371 p 405.
(2) 935 protecting the individual and the democratic idea proper pro claiming the equality of rights and popular sovereignty .
The gradual extension of the idea of equality from political to economic and social fields in the modern State has led to the problems of social security, economic planning and industrial welfare legislation.
The implementation and harmonisation of these.
somewhat conflicting principles is a dynamic task.
The adjustment between freedom and compulsion, between the rights of individuals and the social interest and welfare must necessarily be a matter for changing needs and conditions.
The proper approach is therefore to look upon the fundamental rights of the individual as conditioned by the social responsibility, by the necessities of the Society, by the balancing of interests and not as pre ordained and untouchable private rights.
As pointed out forcefully by Laski: "The struggle for freedom is largely transferred from the plane of political to that of economic rights.
Men become less interested in the abstract fragment of politi cal power an individual can secure than in the use of massed pressure of the groups to which they belong to secure an increasing share of the social Product.
Individualism gives way before socialism.
The roots of liberty are held to be in the ownership and control of the instruments of production by the state, the latter using its power to distribute the results of its regulation with increasing approximation to equality.
So long, as there is inequality, it is argued, there cannot be liberty.
The historic inevitability of this evolution was seen a century ago by de tocqueville.
It is interesting to compare his insistence that the democratization of political power meant equality and that its absence would be regarded by the masses as oppression with the argument of Lord Action that liberty and equality are antitheses.
To the latter liberty was essentially an autocratic ideal; democracy destroyed individuality, which was the very pith of liberty, by seeking identity of conditions.
The modem emphasis is rather toward the principle that material equality is growing inescapable and that the affirmation of personality must be effective upon an immaterial plane.
it is found that doing as one likes, subject only to the demands of peace, is incompatible with either international or municipal necessities.
We pass from contract to relation as we have passed from status to contract.
Men are so involved in intricate networks of relations that the place for their 936 liberty is in a sphere where their behaviour does not impinge upon that self affirmation of others which is liberty." (Encyclopaedia of the Social Sciences, Vol. IX, 445.).
It must :not be forgotten that the fundamental right guaran teed by article 31, for.
instance.
is not absolute.
It should be not that cl.
(4) of that Article, provides an exception to the requirements of cl.
(2). 'Clause (4) relates 'to Bills of a State Legislature relating to public acquisition which were pending at the commencement of fhe Co 'stitution.
If such a Bill has been passed and assented to by the President, the Courts shall have no jurisdiction to question the validity of such law on the of contravention of cl.
(2), ie., on the ground that it does not provide for compensation or that it has been enacted without a public purpose.
Clause (6) of the, Article is another exception to cl.
(2) and provides for ouster of jurisdiction of the Courts.
While cl.
(4) relates to Bills pending in the State Legislature at the encement of the Consistitution, cl.
(6) relates to Bills enacted by the State within IS I months before commencement of the Constitution i.e., Acts providing for public acquisition which were enacted not earlier than July 26, 1948.
If the President certifies ' 'such an Act within 3 months from the commencement of the Constitution, the Courts shall have no jurisdiction to invalidate that Act on the ground of contravention of cl.
(2) of that Article Similarly, the scheme of Art 19 indicates that the fundamental rights guaranted by sub cls.
(a) to (g) of cl, (1) can be validly regulated in the light of the provisions contained in cls.
(2) to (6) of article 19.
In other words, the scheme of Art.19 is two fold; the fundamental rights of the citizens are of paramount importance, but even the said fundamental rights can be regulated to serve the interests of the general public or other objects mentioned respectively in cls.
(2) to (6) of article 19.
It is right to state that the purposes for which fundamental rights can be regulated which are s specified in cls.
(2) to (6), could not have been assumed by the Constitution makers to be static and incapable of expansion.
It cannot be assumed that the Constitution makers intended to forge a political strait jacket for generations to come.
The Constitution makers , must have anticipated that in dealing with, socioeconomic problems which the 1egislatures may have to face from time to time, the concepts of public interest and other important considerations which are the basis of cls.
(2) to (6), may change and may even expand.
As Holmes ' J. has said in Abrams vs United States (1) : "the .,Constitution is an experiMent, as all life is an experiment".
It is therefore legitimate to assume that the Constitution makers (1) ; , 630. 937 intended that Parliament should be competent to make amend ments in these rights so as to meet the challenge of the problems which may arise in the course of socioeconomic progress and development of the country.
I find it therefore difficult to accept the argument of the petitioners thal the Constitution makers contemplated that fundamental rights enshrined in Part III were finally and immutably settled and determined once and for all and these rights are beyond the ambit of any future amendment.
Today at a time when absolutes are discredited, it must riot be too readily assumed that there are basic features of the Constitution which shackle the amending power and which take precedence over the general welfare of the nation and the need for agrarian and social reform.
In construing article 368 it is moreover essential to remember the nature and subject matter of that Article and to interpret it subjectae materies.
The power of amendment is in point of quality an adjunct of sovereignty.
It is in truth the exercise of the highest sovereign :power in the State.
If the amending power is an adjunct of sovereignty it does not Admit of any limitations.
This view is expressed by Dicey in "Law of the Constitution", 10th Edn., at page 148 as follows "Hence the power of amending the constitution has been placed, so to speak, outside the constitution, and that the legal sovereignty of the United States resides in the States ' governments as forming one aggregate body represented by three fourths of the several States at any time.
belonging to the Union.
" A similar view is stated by Lord Bryce in" "The" American Commonwealth", Vol. 1, ch.
XXXII, page 366.
Lester Bernhardt Orfield states,as follows in his book he Amending of the Federal Constitution" "In the last analysis, one is brought to the conclusion that sovereignty in the United States, if it can be said to exist at all, is located in the amending body.
The amending body has often beep referred to as the sovereign, because it meets the fest of the location of sovereignty.
As Willoughby has said: 'In all those cases in which, owing to the distribution of governing power, there is doubt as to the political body in which the Sovereignty rests, the test to be applied is the determination of which authority has, in the last instance, the legal power to determine its own competence as well as that of others '.
938 Applying the criteria of sovereignty which were laid down at the beginning of this chapter, the amending, body is sovereign as a matter of both law and fact.
Article Five expressly creates the amending body.
Yet in a certain manner of speaking the amending body may be said to exist as a matter of fact since it could proceed to alter Article Five or any other part of the Constitution.
While it is true that the sovereign cannot act otherwise than in compliance with law, it is equally true that it creates the law in accordance with which it is to act.
" In his book "Constitutional Law of the United States", Hugh Evander Willis says that the doctrine of amendability of the Constitution is based on the doctrine of the sovereignty of the people ,and that it has no such implied limitations as that an amendment shall not contain a new grant of , power nor be in the form of legislation, nor change "our dual form of government nor change the protection of the Bill of Rights, nor make any other change in the Constitution." James G. Randall also enunciates the proposition that when a constitutional amendment is adopted "it is done not by the 'general government, but by the supreme sovereign power of the nation i.e., the people, acting through State Legis latures or State conventions" and that "the amending power is 'equivalent to the Constitution makin power and is wholly above 'the authority of the Federal Government" ( 'Constitutional Pro Under Lincoln ', p. 395).
, The legal position is summarised 'by Burdick at page 48 of his treaties "The Law of the American Constitution as follows : "The result of the National Prohibition Cases ; seems to be that there is no limit to the power to amend the Constitution, except that a State may not without its consent be deprived of its equal suffrage in the Senate.
To out the case most extremely, this means that by action of two third, of both Houses of Congress and of the, legislatures in three fourths , of the states all of the powers of the national government could be surrendered to the States, or all of the reserved powers of the States could be transferred to the federal government.
It is only public opinion acting upon these agencies which places any check upon the amending power.
But the alternative to this result would be to recognize the power of the Supreme Court to veto the will of the people expressed in a constitutional amendment without any possibility of the reversal of the court 's action except through revolution.
" 939 The matter has been clearly put by George Vedel in Manuel Elementaire De Droit Constitutionnel (Recueil Sirey) at page 117 as follows : "Truly speaking no constitution prohibits for ever its amendment or its amendment in all its aspects.
But it can prohibit for example, the amendment (revision) during a certain time (the Constitution of 1791) or it can prohibit the amendment (revision) on this or that point (as in the Constitution of 1875) which prohibits amendment of the republican form of Government and the present Constitution follows the same rule.
But this prohibition has only a political but no juridical value.
In truth from the juridical viewpoint a declaration of absolute , constitutional immutability cannot be imagined.
The Constituent power being the supreme power in the state cannot be fettered, even by itself.
For example,article 95 of our constitution stipulates, "The republican form of Government cannot be the subject of a proposal for amendment.
But juridically the obstacle which this provision puts in the way of an amendment of the republican form of government can be lifted as follows.
It is enough to abrogate, by way of amendment (revision) the article 95 cited, above.
After this, the obstacle being removed, a second amendment can deal with the republican form of Government.
In practice, this corresponds to the idea that the constituent assembly of today cannot bind the nation of tomorrow.
" the argument of implied limitation was advanced by Mr. N. C. Chatterji and it was contended that item No. 3 of the Indo Pakistan Agreement providing for a division of Berubari Union between India and Pakistan was outside the power of constitutional amendment and that the preamble to the, Constitution did not permit the dismemberment of India but preserved the integrity of the territory of India.
The argument was rejected by this Court and it was held that Parliament acting under article 368 can make a law to give effect to and implement the Agreement in question or to pass a law amending article 3 so as to cover cases of cession of the territory of India and thereafter make a law under the amended article 3 to implement the Agreement.
(1) 940 There is also another aspect of the matter to be taken into account.
If the fundamental rights are unamendable and if article 368 does not include any such power it follows that the amendment of, say, article 31 by insertion of articles 31 A and 31 B can only be made by a violent revolution.
It was suggested for the petitioners that an alteration of fundamental rights could be made by convening a new Constituent Assembly outside the frame work of the present Constitution, but it is doubtful if the proceeding,., of the new Constituent Assembly will have, 'any legal validity, for the reason is that if the Constitution provides its own method of amendment, any other method of amendment of the Constitution will be unconstitutional and void.
For instance, in George section Hawke vs Harvey C. Smith, as Secretairy of State of Ohio(1) it was held by the Supreme Court of the U.S.A. that Referendum provisions.
of State Constitutions ' and statutes cannot be applied in the 'ratification or rejection of amendments to the Federal Constitution without violating the requirements of Article 5 of such Constitution and that such ratification shall be by the legislatures of the several states, or by conventions therein, as Congress shall decide.
It was held in that case that the injunction was properly issued against the calling of a referendum election on the act of the legislature of a State ratifying an amendment to the Federal Constitution.
If, therefore, the petitioners are right in their contention that article 31 is not amendable within the frame work of the present Constitution, the only other recourse for making the amendment would, as I have already said, be by revolution and not through, peaceful means, It cannot be reasonably supposed.
that the Constitution makers contem plated that article 31 or any other article on fundamental rights should be altered by a violent revolution and not by peaceful change.
It was observed in Feigenspan vs Bodine (2) "If the plaintiff is right in its contention of lack of power to insert the Eighteenth Amendment into the United States Constitution because of its subject matter.
it follows that there is no way to incorporate it and others of like character into the national organic law, except, through revolution.
This, the plaintiff concedes, is the inevitable conclusion of its contention.
This is so starting a proposition that the judicial mind may be pardoned for not readily acceding to it, and for insisting that only the most convincing reasons will justify 'its acceptance.
" I am, therefore, of the opinion that the petitioners Are unable to make good their argument on this aspect of: the case.
It was then contended for the petitioners,that there would be anomalies if article 368 is interpreted to have no implied limita (1) ; (2)264 Fed.
941 tions.
It was said that the more important articles of the Constitution can be amended by the procedure mentioned in the substantive part of article 368 but the less important articles would require ratification by the legislatures of not less than half of the States under the proviso to that Article.
It was argued that the fundamental rights and also article 32 could be amended by the majority of two thirds of the members of Parliament but article 226 cannot be amended unless there was ratification of the legislatures of not less than half of the States, It was pointed out that articles 54 and 55 were more difficult to amend but not article 52.
Similarly, article ' 162 required ratification of the States but not article 163 which related to the 'Council of Ministers to aid and advise the Governor in the exercise of his functions.
In my opinion the argument proceeds on a misconception.
The scheme of article 368 is not to divide the Articles of the Constitution into two categories, viz., important and not so important Article.
It was contemplated by the Constitution makers that the amending power in the main part of article 368 should extend to each and every article of the Constitution but in the case of such articles which related to the federal principles or the relation of the States with the Union, the ratification of the legislatures of at least half the States should be obtained for any amendment.
It was also contended that if article 368 was construed without any implied limitation the amending power under that Article could be used for subverting the Constitution.
Both Mr. Asoke, Sen and Mr. Palkiwala resorted to the method of reduction ad absurdem 'MI pointing out the abuses that might occur if there were no limitations on the power to amend.
It was suggested that Parliament may, by a constitutional amendment, abolish the parliamentary system of government or repeal the chapter of fundamental rights or divide India into.
two States, or even reintroduce the rule of a monarch.
It. is inconceivable that 'Parliament should utilise the amending power for bringing about any of these contingencies.
It is, however, not permissible, in the first place, to assume that in a matter of constitutional amendment there will be abuse of power and then utilise it as a test for finding out the scope of the amending power.
This Court has declared repeatedly that the possibility of abuse is not to be used as a test of the existence or extent of a legal power [See for example, State of West Bengal vs Union of India(1), at page 407].
In the second place, the amending power is a power, of an altogether different kind from the ordinary governmental power and if an abuse occurs,, it occurs at the hands of Parliament and the State Legislatures representing an extraordinary majority of the people, so that for all practical purposes it may be said to be the people, or at least.
the highest agent of the people, and one exercising sovereign powers.
It is therefore (1) [1964]1 S.C.R. 371. 942 anomalous to speak of 'abuse ' of a power of this description.
In the last analysis, political machinery and artificial limitations will not protect the people from themselves.
The perpetuity of our democratic institutions will depend not upon special mechanisms or devices, nor even upon any particular legislation, but rather upon the character and intelligence and the good conscience of our people themselves.
As observed by Frankfurter, 1.
in American Federation of Labour vs American Sash & Door Co.(1) "But a democracy need rely on the courts to save it from its own unwisdom.
If it is alert and without alertness by the people there can be no enduring democracy unwise or unfair legislation can readily be removed from the statute books.
It is by such vigilance over its representatives that democracy proves itself" I pass on to consider the next objection of the petitioners that the true purpose and object of the impugned Act was to legislate in respect of land and that legislation 1n respect of land falls within the jurisdiction of State legislatures under Entry 18 of List 11, and the argument was.
that since the State Legislatures alone can make laws in respect of land, Parliament had no right to pass the impugned Act.
The argument was based on the assumption that the impugned Act purports to be, and in fact is, a piece of land legislation.
It was urged.
that the scheme of articles 245 and 246 of the Constitution 'clearly showS that Parliament has no right to make a law in respect of land, and since the impugned Act is a legislative measure in relation to land, it is in Valid.
In my opinion, the argument is based upon a misconception.
Whet the impugned Act purports to do is not to make any land legislation but to protect and validate the legislative measures in respect of agrarian reforms passed by the different State Legislatures in the country by granting them immunity from attack based on the plea that they contravene fundamental rights.
The impugned Act was passed by Parliament in exercise of the amending power conferred by article 368 and it is impossible to accept the argument that the constitutional power of amendment can be fettered by articles 245 and 246 or by the legislative Lists.
It was argued for, the petitioners that Parliament cannot validate a law Which it has no Power to enact.
The proposition holds good where the validity on impugned Act turns on whether the subject matter falls within or without the jurisdiction of the legislature which passed it.
But to make a law which contravenes the Constitution constitutionally valid is a matter of constitutional amendment, and as such it falls within the exclusive power of Parliament and within the amending power conferred by article 368.
I am accordingly of the opinion that the petitioners are unable to (1) ; ,556.
943 substantiate their argument on this aspect of the case.
I should like to add that in Lesser vs Garnett(1), in National Prohibition Cases(2 ) and in United States vs Sprague(3), a similar argument Was advanced to the effect that a constitutional amendment was not valid if it was in the form of legislation.
But the argument was rejected by the Supreme Court of the U.S.A. in all the three cases.
It remains to deal with the objection of the petitioners that the newly inserted articles 31 A and 31 B require ratification of the State legislatures under the proviso to article 368 of the Constitution because these articles deprive the High Courts of the power to issue appropriate writs under article 226 of the Constitution.
I do not "think there is any substance in this argument.
The impugned Act does not purport to change the provisions of article 226 and it cannot be, said even to have that effect directly or in any substantial measure.
It is manifest that the newly inserted articles do I not either in terms or in effect seek to make any change in article 226 of the Constitution.
Article 31 A aims 'at saving laws providing for the compulsory acquisition by the State of a certain kind of property from the operation of article 1 3 read with other relevant articles in Part III, while article 31 b purports to validate certain specified Acts g Regulations, already passed, which, but for such a; provision , would be liable to be impugned under article 13 It is therefore ' not correct to say that the powers of High Courts to issue writs is, in 'any way, affected.
The jurisdiaction 'of the High Courts remains just the same as it Was before.
Only 'a certain category of cases has been excluded from the purview of Part III and the High Courts can no longer intervene, not because their Jurisdiction or powers have been curtailed in any manner or to.
any but because there would be no occasion hereafter for the exercise of their power in such cases.
As I have already said, the effect of the impugned Act on the jurisdiction of the High Courts under article 226 of the, Con stitution is not direct but only incidental in character and therefore the contention " of the petitioners on this point against the validity of the impugned Act must be rejected.
It is well settled that in examining a constitutional question of this character, it is legitimate to consider whether the impugned legislation is a legislation directly in respect of the subject matter covered by any particular article of the Constitution or whether touches the said articles only incidentally or indirectly.
In A. K. Gopalan vs The State of Madras (4), kania , C.J., had occasion to consider the validity of the argument that, the Preventive detention order resulted in the detention of the applicant in a cell, and so, it contravened his fundamental rights guaranteed by (1) ; (2)253 U.S. 350.
(3) ; (4) ; 101. 944 article 19(1)(a), (b), (c), (d), (e) and (g).
, Rejecting this argument, the learned Chief Justice observed that the true approach in dealing with such a question was only to consider the directness of the legislation and not what will be the result of the detention otherwise valid, on the mode of the detenu 's life.
On that ground alone, he was inclined to reject the contention that the order of detention.contravened the fundamental rights guaranteed to the petitioner under article 19(1).
At page 100 of the report, Kania, C.J., stated as follows : "As the preventive detention order results in the detention of the applicant in a cell it was contended on his behalf that the rights specified in Article 19(1) (a), (b), (c), (d), (e) and (g) have been infringed.
It was argued that because of his detention he cannot have a free right to speech as and where he desired and the same argument was urged in respect of the rest of the rights mentioned in sub clauses (b), (c), (d) (e) and (g).
Although this argument is advanced in a case which deals with preventive detention, if correct, it should be applicable in the case of punitive detention also to any one sentenced to a term of imprisonment under the relevant section of the Indian Penal Code.
So considered, the argument must clearly be rejected.
In spite of the saving clauses (2) to (6), permitting abridgement of the rights connected with each of them, punitive detention under several sections of the Penal Code, i.e., for theft, cheating, forgery and even ordinary assault, will be illegaL Unless such conclusion necessarily follows from the article, it is obvious that such construction should be avoided.
In my opinion, suc h result is.
clearly not the outcome of the Constitution.
The article has to be read without any pre conceived notions.
So read, it clearly means that the legislation to be examined must be directly in respect of one of the rights mentioned in the sub clauses.
If there is a legislation directly attempting to control a citizen 's freedom of speech or ex pression, or his right to assemble peaceably and without arms, etc., the question whether that legislation is saved by the relevant saving clause of article 19 will arise.
If, however, the legislation is not directly in respect of any of these subjects but as a, result of the operation of other legislation, for instance, for punitive or preventive detention, his right under any of these sub clauses is abridged, the question of the application of article 19 does not arise. 'Me true approach is only to consider the direct ness of the legislation and not what will be the result of the detention otherwise valid, on the mode of the detenu 's 945 life.
On that , short ground, in my opinion, this argument about the infringement of the rights mentioned in article 19(1) generally must fail.
Arty other construction put on the article, it seems to me , will be unreason It is true that the opinion thus expressed by Kania, C.J. in the case of A. K. Gopalan vs The State of Madras( ) did not receive, the concurrence of the other learned Judges who heard the said case.
Subsequently, however, in Ram Singh & Others vs The State of Delhi & Anr.(2) the said observations were cited with approval by the Full Court.
The same.
principle was accepted by this Court in Express Newspapers (Pvt.) Ltd. vs The Union of India( '), in the majority judgment in Atiabari Tea Co. Ltd. vs The State of Assam (4 ) and in Naresh Shridhar Mirajkar vs The State of Maharashtra("),.
Applying the same principle to the present case, consider that the effect of the impugned Act on the powers of the High Court under article 226 is indirect and incidental and not direct.
I hold that the impugned Act falls under the substantive part of article 368 because the object of the impugned Act is to amend the relevant Articles in Part III which confer fundamental rights on citizens and not to change the power of the High Courts under article 226.
In this connection I should like to refer to another aspect of the matter.
The question about the validity of the Constitution (First Amendment) Act has been considered by, this Court in Sri Sankari Prasad Singh Deo vs Union of India and State of Bihar(6).
In that case, the validity of the said Amendment Act was challenged, firstly, on the ground that the newly inserted articles 31 A and 31 B sought to make changes in articles 132 and 136 in Ch.
IV of Part V and article 226 in Ch.
V of Part VI.
The second ground was that the amendment was invalid because it related to legislation in respect of land.
It was also urged, in the third place, that though it may be open to Parliament to amend the provisions in respect of fundamental rights contained in Part ITT, the amendment made in that behalf would have to be tested in the light of provisions of article 13(2) of the Constitution.
The argument was that the law to which article 13(2) applied would include a law passed by Parliament by virtue of its constituent power to amend the Constitution, and so, its validity will have to be tested by article 13(2) itself.
All these arguments were rejected by this Court and it was held in that case that the Constitution (First Amendment) Act was legally valid.
The same question arose for consideration in Sajjan Singh vs State of Rajasthan (7) with regard to the validity of the Constitution (Seventeenth Amendment) Act, 1964.
In that case, the petitioners in their (1) ; (2) ; ,456.
(3) ,129 30.
(4) ; , 864.
(5) ; (6) [1995] 1 S.C.R. 89.
(7) 946 Writ Petitions in this Court contended that the Constitution (Seventeenth Amendment) ' Act was constitutionally invalid since the powers Prescribed by article 226 which is in Ch.
V, Part VI of the Constitution Were likely to be affected by the Seventeenth Amendment, and therefore the special procedure laid down under article 368 should have been followed.
It was further contended in that case that the decision of this court in Sankari Prasads(1) case should be reconsidered. 'Both the contentions were re , rejected by this Court by ' a majority Judgment and it was held that the Constitution (Seventeenth Amendment) Act amended the fundamental rights solely with the object of assisting the State Legislatures to give effect to the socioeconomic policy of the party inpower and its effect on article 226 was incident and insignificant and the impugned Act therefore fell under the substantive part of article 368 and did not attract the proviso to that article.
It was further held.
by this Court that there Was no justification for re considering Sankari Prasad 's(1) case.
On behalf of the respondents it was submitted by the Additional Solicitor Generat that this was a very strong case for the application of the principle of stare decisis.
In my opinion, this contention must be accepted as correct.
If the arguments urged by the petitioners are to prevail it would leadto the inevitable consequence that the amendments made to the Constitution both in 1951 and in 1955 would be rendered invalid and.
a large number of decisions dealing with the validity of the Acts included in the 9th Schedule which were pronounced by this Court ever since, the decision in Sankari Prasad 's(1) case was dec lared, would also have to be overruled.
It was also pointed out that Parliament, the Government and the people have acted on the, faith of the decision of this Court in Sankari Prasad 's(1) case and titles to property have been transferred, obligations have been incurred and rights have been acquird in the implementation of the legislation included in the 9th Schedule.
The, effect of land reform legislation has been clearly summarised in ch.
VIII of Draft Outline on Fourth Plan as follows "Fifteen years ago when the First Plan was being formulated, intermediary tenures like zamindaris, jagirs and inams covered more than 40 per cent of the area.
There were large disparities in the ownership of land held under ryotwari tenurer which covered the other 60 per cent area; and ' a substantial portion of the land was cultivated through tenants at will and share croppers who paid about one half the produce as rent.
Most holdings were small and fragmented.
Besides, there was a large population of landless agricultural labourers.
In these conditions, the, principal.
measures recommended for securing the objec (1)[1952] S.C.R. 89. 947 tives of the land policy were the abolition of intermediary tenures, reform of the tenancy system, including fixation of fair rent at one fifth to one fourth of the grossproduce, security of I tenure for the tenant, bringing tenants into direct relationship with the State and investing in them ownership of land.
A ceiling on land holding was also recmmended so that some surplus land, may be made available for redistribution to the landless agricultural workers.
Another important part of, the progamme was consolidation of agricultural holdings and increse in the size of the operational unit to an economic scale through cooperative methods.
Aboiition of Intermediaries.
During the past 15 years, progress has been made in several directions.
Theprogramme for the abolition of intermediaries has been carried out practically all over, the country.
About 20 million tenants of former intermediaries came into direct relationship with the State and became owners of their holdings.
State Governments are now engaged in the assessment and payment of compensation.
There were some initial delays but a considerable progress hag been made in this direction in recent years and it is hoped that the issue of compensatory bonds will be completed in another two years.
Tenancy Reform.
TO deal with the problem of tenants at will in the ryotwari areas and of 'sub ' tenants in the zamindari areas, a good deal of legislation has been enacted.
Provisions for security of tenure, for bringing them into direct relation with the State and converting them into owners have 'been made in several States.
As a result, about 3 million tenants and share croppers have acquired ownership of 'More than 7 million acres.
Ceiling on Holdings.
Laws imposing ceiling on agri,cultural holdings bave been enacted in all the States.
In the former Punjab area, however the State Government has the power to settle tenants on land in excess of the permissible limit although it has not set a ceiling on ownership.
According to available reports over 2 million acres of surplus areas in excess of the ceiling limits have, been declared or taken possession of by Government.
" It is true that the principle of stare decisis may not strictly apply to, a decision on a constitutional point.
There is no restriction in the Constitution itself which prevents this Court from reviewing its earlier decisions or even to depart from them in the interest of public good.
It is true that the problem of construing constitutional provisions cannot be adequately solved by merely adopting 948 the literal construction of the words used in, the various articles.
The Constitution is an organic document and it is intended to serve as a guide to the solution of changing problems which the Court ' may have to face from time to time.
It is manifest that in a progressive and dynamic society the character of these problems is bound to change with the inevitable consequence that the relevant words used in the Constitution may also change their meaning and significance.
Even so., the Court is reluctant to accede to, the suggestion that its earlier decisions should be frequently reviewed or departed from.
In such a case the test should be : what is the nature of the error alleged in the earlier decision, what is its impact on the public good and what is the compelling character of the considerations urged in support of the contrary view.
It is also a relevant factor that the earlier decision has been followed in, a large number of cases, that titles to property have passed and multitude of rights and obligations have been created in consequence of the earlier decision.
I have already dealt with the merits of the contention of the petitioners with regard to the validity of the impugned Act and I have given reasons for holding that the impugned Act is constitutionally valid and the contentions ,of the petitioners are unsound.
Even on the assumption that it is possible to take a different view and to hold that the impugned Act is unconstitutional I am of opinion that the principle of state decisis must be applied to the present case and the plea made by the, petitioners for reconsideration of Sankari Prasad(1) case and the decision in Sajjan Singh vs State of Rajasohan(2) is wholly unjustified and must be rejected.
In Writ Petition No. 202 of 1966, it was contended by Mr. Nambyar that the continuance of the Proclamation of Emergency under article 352 of the Constitution was a gross violation of power because the emergency had ceased to exist.
It was also contended that article 358 should be so construed as to confine its operation on to legislative or executive action relevant to the Proclamation of Emergency.
It was submitted that the Mysore State was rot a border area and the land reform legislation of that State had no relevant connection with the Proclamation of Emergency and the fundamental rights conferred by article 19 cannot be suspended so far as the petitions are concerned.
I do not think that it is necessary to express any opinion on these points because the Writ Petition must fail on the other grounds which I have already discussed above.
It is also not necessary for me to express an opinion on the doctrine of prospective overruling of legislation.
For the reasons already expressed I hold that all these petitions fail and should be dismissed, but there will be no order as to Petitions dismissed.
Costs.
[/INST]Held, that the first portion of cl. 25 of the Rajasthan Foodgrains Control Order, 1949, relating to the freezing of stocks of foodgrains is not void under article 19(1)(f) of the Constitution because such freezing of stocks of foodgrains is reasonably related 983 to the object which the Act was intended to achieve, namely to secure the equitable distribution and availability at fair prices and to regulate transport, distribution, disposal and acquisition of an essential commodity such as foodgrains.
Hold, that the last portion of cl. 25 to the effect that " such stocks shall also be liable to be requisitioned or disposed of under orders of the said authority at the rate fixed for purposes of Government procurement ", is void both under article 19(1)(f) and article 31(2) of the Constitution: (i)because the clause places an unreasonable restriction upon the carrying on of trade or business and is thus an infringement of the respondents ' right under article 19(1)(f) of the Constitution; (ii)because the clause by vesting the power in the authority to acquire the stocks at any price fails to fix the amount of compensation or specify the principles on which it is to be determined and leaves it entirely to the discretion of the executive authority to fix any compensation it likes and is thus hit by article 31(2) of the Constitution.
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<s>[INST] Summarize the judgementCriminal Appeal No. 21 of 1965.
Appeal by special leave from the judgment and order dated May 19, 1964 of the Punjab High Court, Circuit Bench at Delhi in Criminal Appeal No. 7 D of 1963.
A.S.R. Chari, C.L. Sareen and R.L. Kohli, for the appellant.
B.R.L. lyenger, S.P. Nayar for R.N. Sachthey, for the respondent.
The Judgment of the Court was delivered by Sikri, J.
This appeal by special leave was limited to the question whether the case comes under section 302 of the Indian Penal Code.
The case of the prosecution which has been accepted by 247 the learned Sessions JUdge and the High Court was,.
in brie as follows: On January 31, 1962, at about 2.30 p.m., a fight took place ' between Dalip Kumar, P.W. 12, and Harjinder Singh, appellant, near the water tap in front of a tin factory in Zamirwali lane, Delhi.
Harjinder was apparently worsted in the fight and he then left the place holding out a threat that he would teach a lesson to Dalip Kumar.
The appellant.
returned with his brother Amarjit Singh to the house of Dalip Kumar and shouted to Dalip Kumar to come out.
Tejibai opened the door of the house and asked the appellant and Amarjit Singh to go away, but either these two or the appellant pulled Dalip Kumar out of the house into the lane and gave him beating near a lamp post in the comer of Zamirwali lane.
that time the deceased Kewal Kumar, who was the brother of Dalip Kumar, came and tried to intervene and rescue his brother.
It is at this stage that the evidence conflicting as to what exactly happened, According to one version, Amarjit Singh accused caught hold of Kewal Kumar and the appellant took out the knife and stabbed the deceased.
According to the other version, given by Mohd. Ali, P.W. 5, this is what happened: "Dalip Kumar 's brother holding Jinda accused asked him not to fight.
Jinda at that time took out the knife from his pocket and opened it with both his hands and then gave a blow with it under the belly and the upper portion of the left thigh.
Amarjit Singh accused did not do.
anything.
" In cross examination he stated: "Jinda accused was holding Dalip Kumar from the collar of his shirt by his left hand.
At that time Kewal Kumar was on right hand side of Jinda accused.
When Jinda took out the knife and opened it with both his hands, Dalip Kumar and his brother Kewal were grappling with Jinda accused Jinda accused gave only one knife blow to Kewal Kumar.
Kewal Kumar was m bent condition when he was stabbed only once." After inflicting this injury the appellant ran away.
Dr. G. section ,Mittal, P.W. 8, noted the following injuries on the person of the deceased: 1.
A stab wound 1"x1/4"x? On left thigh upper and below the inguinal ligament.
Abrasion l" x linear on back of left fore arm middle.
He described the other features of the injuries as follows: 248 "The direction of the stab wound was Oblique and was going medially.
Sartorius muscle was cut underneath along with femoral artery and vein.
Cut over major part of their diameter.
There was effusion of blood in the muscles and around the track over left thigh upper end. " He deposed that death was due to shock and hemorrhage from injury to femoral vessels by stab wound of the thigh.
He further stated: "It is correct that femoral artery and vein are important main vessels of.
the body.
The cutting of these vessels would result in great loss of blood.
The cutting injuries of these vessels could result in immediate death or after short duration.
" It was urged before the Sessions Judge 0n behalf of the appellant that, in the circumstances of the case; the offence, if at all committed, Would fall under section 326, I.P.C. The learned Sessions Judge, relying on Virsa Singh vs State of Punjab (1), he/d: "In this case, the prosecution has proved that the bodily injury, the nature of which has been described above was present.
This injury was caused with the pen knife deliberately.
It was not accidental or unintentional.
Injury of any other kind.
was not intended.
This injury in the opinion of this doctor was sufficient in the ordinary course of nature to cause death.
This being so the case ; would apply and the offence which the accused Jinda has committed falls u/s 302 Indian Penal Code." The High Court, on appeal, over ruled a similar contention in the following words: "Lastly, the counsel has attempted to take the case out of the purview of the offence of murder.
It has been contended that it was.
just a small knife with which a blow was given and that it was not on the vital part of the body and, therefore, the appellant should not be held guilty of murder.
In my opinion, the contention is wholly unsustainable.
The deceased, a boy of about 16 years of age had merely come to help his brother, when the appellant, who had deliberately come armed with knife from his house, stabbed the deceased with that knife on vulnerable part.
1 do not see how the (1) ; 249 offence can be considered not to fall within the purview of murder.
" Later, the High Court observed: "It is futile to contend that he did not intend to kill the deceased.
The injury and the weapon are quite eloquent in this respect.
" The learned counsel for the appellant, Mr. Chari, contends on the facts established in this case no offence under section 302 s been committed and the appellant should have been connected under section 326 or at the most under section 304, part two.
The learned counsel for the respondent strongly relies.
on the decision this Court in Virsa Singh vs Slate of Punjab(1) and he says at all the ingredients laid down in that case by this Court are ascent in this case and, therefore, the High Court was correct in firming the conviction of the appellant under section 302, I.P.C. It seems to us.
that all the ingredients which were laid down this Court in that case have not been established in this case.
Bose, J., speaking for the.
Court observed: "To put it shortly, the prosecution must prove the following facts before it can bring a case under section 300, "3rdly"; First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved.
These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and,.
Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature.
This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
" The learned Judge further explained the third ingredient at p. 1503 in the following words: "The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he (1) ; 250 intended to inflict 'the injury ' that is proved tO be present.
If he can show that he did not, or if the totality of ' the circumstances justify such an inference, then, of 'course, the intent that the section requires is not proved.
But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it.
Whether he knew of its seriousness, or intended serious consequences, is neither here nor ,there.
The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.
In Rajwant singh vs
State of Kerala(1), Hidayatullah, J. referring to Virsa Singh vs state of Punjab(2), observed: "As was laid down in Virsa Singh vs State of Punjab. for the application of this clause it must be first established that an injury is caused, next it must be established objectively what the nature of that injury in the ordinary course of nature is.
If the.
injury is found to be sufficient to cause death one test is satisfied.
Then it must be proved that there was an intention to inflict that very injury and not so.me other injury and that it was not accidental or unintentional.
If this is also held against the offender the offence of murder is satisfied.
" It seems to us that the.
High Court has not considered whether the third ingredient laid down by Bose, J. in Virsa Singh vs State Punjab(2) has been proved in this case or not.
In our opinion the circumstances justify the inference that the accused did not intend to cause an injury on this particular portion of the thigh.
The evidence indicates that while the appellant was trying to assault Dalip Kumar and the deceased intervened, the appellant timing 'himself one against two took out the knife and stabbed 1he deceased, It also indicates that the deceased at that stage was in a crouching position presumably to intervene and separate the two.
It cannot, therefore, be said With any definiteness that the appellant aimed the blow tat this particular part of the thigh knowing that it would cut the artery.
It may be observed that the appellant had not used the knife While he was engaged in the fight with Dalip Kumar.
It was only when he felt that the deceased also came up against him that he whipped out the knife.
(1) A.I.R. 1965 S.C.1874, 1878 (2) ; 251 in these circumstances it cannot be said that it has been proved that it was.
the intention of the appellant to inflict this particular injury on tiffs particular place.
It is, therefore, not possible to apply cl. 3 of section 300 to the act of the accused.
Nevertheless, the deceased was in a crouching position when the appellant struck him with the knife.
Though the knife was " 5 to. 6" in length including the handle it was nonetheless a dangerous weapon.
When the appellant struck the deceased with the knife, he must have known that the deceased then being in a bent position the blow would land in the abdomen or near it a vulnerable part of the human body and that such a blow was likely to result in his death.
In these circumstances it would be quite legitimate to hold that he struck the deceased with the knife with the intention to cause an injury likely to cause death.
We are, therefore, of the opinion that the offence falls under section 304 Part 1.
The appeal is allowed and the conviction is altered from one under section 302 to section 304 Part 1 and the appellant is sentenced to seven years rigorous imprisonment.
G.C. Appeal allowed.
[/INST]By a notification under section 4 of the Land Acquisition Act issued on March 10, 1965 the respondent State Government notified that certain lands were needed for a public purpose, namely, the construction of the State capital, that the Government was satisfied that they were 'arable lands ' and further directed, under section 17(4) of the Act, that as the acquisition of the lands was urgently necessary, the provisions of section 5A would not apply.
Thereafter, a notification was issued under section 6 containing a direction under section 17(1) of the Act enabling the Collector to take possession of all the arable lands on the expiry of 15 days from the publication of the notice under section 9(1) of the Act.
Both Notifications were signed by an Under Secretary of the respondent Government.
The petitioners challenged the notifications in writ petitions under article 226.
In the original affidavits, the petitioners merely asserted that the Government had not made up its mind regarding the acquired lands as to urgency and that the lands were not arable.
The parties filed a number of affidavits at various stages of the bearing, the Government in order to establish that everything was regularly done, while the petitioners alleged infractions.
In one of the affidavits on behalf of the Government it was stated that file Minister in charge gave oral instructions to the Secretary that he or his under secretaries may take action under section 17(1) and (4) of the Act according to law, that the Secretary was satisfied regarding urgency and gave instructions to the Under Secretary to take the necessary action.
The High Court after considering the affidavits, dismissed the petitions.
In appeal to this Court it was contended that: (i) only a Secretary could sign the notifications and that the Under Secretary who signed the notification under section 6 was not duly authorised to do so; (ii) that there was no formation of opinion by the Government as regards urgency or that the lands were arable; (iii) that this function could not be delegated to the Secretary and even if it could be delegated, a general oral instruction given by the Minister was not according to the procedure prescribed by the Rules of Business; (iv) that since the lands in question were under cultivation, they were not waste or arable lands; and (v) that sub sections
(1) and (4) of section 17 of the Act were violative of articles 14 and 19(1)(f) of the Constitution.
HELD: Dismissing the petitions.
(1) The word 'Secretary ' is not defined in the Land Acquisition Act or the General Clauses Act so as to exclude Additional, Joint, Deputy, Under or Assistant Secretaries.
On the other hand r.13 of the Rules of Business framed under article 166 of the Constitution specifically places a 268 Secretary, Joint Secretary, Deputy Secretary, Under Secretary and Assistant Secretary on equality for authentication of orders and instruments of Government.
The Under Secretary was, therefore, competent to sign the notifications.
[273F; 274E] Even if he did not possess the power as a Secretary he would have been competent as an officer 'duly authorised ', within the meaning of section 6 of the Act, by virtue of r. 13 of the Rules of Business.
[274F] (ii) Under article 166 of the Constitution the validity of the notification could not be called in question on the ground that it was not an order made by the Governor, because, as required by the Article the executive action of the Government was expressed to be taken in the name of the Governor and the order was authenticated in the manner required by r. 13 of the Rules of Business.
In addition, there is also the presumption of regularity of official acts.
Therefore, the bare assertion that Government had not formed an opinion could not raise an issue.
The Government was not called upon to answer the affidavit of the petitioners and the Government need not have undertaken the burden of showing the regularity of their action.[275 E G; 278 D, F] (iii) Rules 7, 10, 13 and 15 of the Rules of Business specifically allow conferral of powers on Secretaries and the determination of the Secretary becomes the determination of the Government.
There is nothing in the Rules or instructions which prescribes that the authority must be in writing or by Standing Orders.
Under Paragraph 3 of the instructions issued by the Governor under r. 15 of the Rules of Business, Standing Orders are necessary for the disposal of cases in the department, and a case is defined as 'the papers under consideration and all previous papers and notes put in connection therewith to enable the question raised to be disposed of '.
Paragraph 4, on the other hand refers to "matters or classes of matters".
Therefore, paragraph 3 only refers to the disposal of cases and not to matters arising In a case, regarding which under paragraph 4, the Minister may arrange with the Secretary whether they are to be brought to his personal notice or not.
The matters in the present case were the application of section 17(1) and (4), to the acquisition of waste and Arabic lands and the Minister could leave this matter to his Secretary as he did.
For this purpose, Standing Orders were not necessary and oral instructions would be sufficient.
The Secretaries concerned were given the jurisdiction to take action on behalf of Government and they satisfied themselves about the need for acquisition under section 6, the urgency of the matter and the existence of waste and arable lands for the application of sub sections
(1) and (4) of section 17.Therefore, on a review of the affidavits, the provisions of the Act and the Business Rules and Instructions, the directions under sub sections
(1) and (4) of section 17 were not invalid.
[280 D G; 281 C D; 282 E G] Shayamaghana Ray vs State, A.I.R. 1952 Orissa 200, referred to.
Emperor vs
Shlbnath Banerji, L.R. 72 I.A. 241, distinguished.
(iv) Arable land under the Act is not only land capable of cultivation but also land actually under cultivation.
The words 'compensation for the standing crops and trees (if any) on such land ' in section 17(3), show that the land may have crops or he fallow and the crops can only be on arable land.
because.
if crops could grow or were actually grown the land Would hardly he waste land [286 A B, E] Baldeo Singh & Ors.
vs State of U.P. A.I.R. 1965 All Smt.
Lakshmi Devi Ors.
vs State of Bihar ' & Ors.
A.I.R. 1965 Pat, 400 269 and Guntur Ramalakshmamma vs Govt.
of Andhra Pradesh, A.I.R. , approved.
Sadruddin Suleman vs
J.H.Patwardhan, A.I.R.1965 Born.224.
over ruled.
(v) The High Court had rightly held that sub as.
(1) and (4) and 17 were not unconstitutional.
[286 F G]
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<s>[INST] Summarize the judgementCivil Appeal No. 631 of 1973.
Appeal by Special Leave from the Judgment and Order dated 14/16th November, 1970 of the Gujarat High Court in Sales Tax Reference No. 9/69.
R. P. Bhatt and section P. Nayar for the Appellant.
Appeal Set down ex Parte against respondent.
The following Judgments were delivered.
BHAGWATI, J. I have had the advantage of reading the judgment prepared by my learned brother Sen and I entirely agree with the conclusion reached by him, but I would like to state briefly my 873 own reasons for arriving at that conclusion.
The facts giving rise to this appeal have been stated with admirable succinctness by my learned brother Sen and I need not repeat them.
The facts in deed are not material, because only one single question of law arises for determination in this appeal and it does not depend on any particular facts.
The question is a very simple one, namely, whether the expression 'Registered dealer ' in sec.8(ii) of the Bombay Sales Tax Act, 1959 as applicable to the State of Gujarat (hereinafter referred to as the Bombay Act) means only a dealer registered under section 22 of that Act or it also comprises a dealer registered under the (hereinafter referred to as the Central Act).
Since the decision of this question turns on the true interpretation of the expression 'Registered dealer '.
in sec.8(ii) of the Bombay Act, we may reproduce that section as follows: "Sec.8: There shall be levied a sales tax on the turn over of sales of goods specified in Schedule C at the rate set out against each of them in column 3 thereof, but after deducting from such turnover (i) * * * * (ii) resales of goods purchased by him on or after the appointed day from a Registered dealer if the goods at the time of their purchase were goods specified in Schedule C".
This section has obviously been enacted to prevent multiple point taxation on goods specified in Schedule C.
Where goods specified in Schedule 'C ' are sold by a dealer and obviously he must be a dealer registered under section 22 of the Bombay Act, if he is liable to pay tax under that Act the turnover of these sales is liable to be taxed at the rate specified against each category of goods in that Schedule, but if the sales in question are re sales of goods purchased by the dealer on or after the appointed day from a 'Registered dealer ', they would be liable to be excluded from the turnover, because the 'Registered dealer ' from whom they are purchased would have paid tax under the main part of section 8 and the goods having already borne tax in the hands of the selling 'Registered dealer ', the legislative intent is that they should not suffer tax again.
Now the expression 'Registered dealer ' is defined in section 2(15) of the Bombay Act to mean "a dealer registered under section 22" and therefore, ordinarily, the expression 'Registered dealer ' as used in section 8(ii) must carry the same meaning, namely, a dealer registered under section 22 of the Bombay Act.
But, as the opening part of section 2 shows, the definitional meaning is subject to anything repugnant in the subject or 874 context.
The context in which the defined word occurs may clearly indicate that it is used in a sense different from that given in the definition clause.
We must therefore see whether there is anything in section 8(ii) or in the context in which it occurs which should compel us to place on the expression 'Registered dealer ' as used in that section a meaning different from that given to it in section 2(15).
We are afraid we do not find anything in the subject or context of sec.8(ii) which would persuade us to depart from the definitional meaning of the expression 'Registered dealer '.
The subject and context in fact re enforce the view that the expression 'Registered dealer ' in sec.8(ii) is used to mean a dealer registered under sec.22 of the Bombay Act, and does not include a dealer registered only under the Central Act.
If a dealer is registered only under the Central Act and not under the Bombay Act, it would mean that he is not liable to pay tax under the Bombay Act and in that event, even if he has sold goods specified in Schedule 'C ', to a registered dealer under an intra State sale, no tax would be payable by him on such sale and if the purchasing dealer is also to be exempt from tax in respect of re sale effected by him, the result would be that the goods would escape tax altogether and not suffer even single point tax.
That surely could not have been the intendment of the legislature in enacting section 8(ii).
It would indeed frustrate the object of section 8(ii) which is to provide for imposition of single point tax on the goods specified in Schedule 'C '.
The situation would be the same even where the sale effected by the dealer registered under the Central Act is an inter State sale.
That sale would undoubtedly be taxable under the Central Act, but it is difficult to see why the Gujarat State should give exemption to re sale of goods in respect of which, at the time of the first sale, tax has been levied under the Central Act of which the benefit has gone to another State.
Moreover, in such a case, the first sale being an inter State sale, would be taxable at a fixed concessional rate under section 8(1)(a) or at the rate of 7% or at a rate equal to or twice the rate applicable to the sale of such goods in the State of the selling dealer, under clause (a) or (b) of sub section (2) of sec.
8 of the Central Act and if that be so, it is impossible to understand why the Legislature should have insisted, for attracting the applicability of section 8(ii), that the goods resold by the dealer should at the time of their first sale be goods specified in Schedule 'C '.
The requirement that the goods at the time of their first sale by the 'Registered dealer ' should be of one of the categories specified in Schedule 'C ', is a clear pointer that the 'Registered dealer ' contemplated in this provision is a dealer registered under section 22 of the Bombay Act, because it is only with reference to such a dealer liable to pay tax under the Bombay Act that this 875 requirement of the goods sold by him being goods specified in Schedule 'C ' can have any meaning and significance.
We are, therefore, clearly of the view that the expression 'Registered dealer ' is used in section 8(ii) in its definitional sense to mean a dealer registered under section 22 of the Bombay Act and it does not include a dealer registered under the Central Act.
The Revenue, however, relied on section 4 of the Bombay Act and tried to project it in the interpretation of the expression 'Registered dealer ' in section 8(ii).
We fail to see how section 4 can at all help in throwing light on the true interpretation of the expression 'Registered dealer '.
That section provides: "Sec. 4(1): Notwithstanding anything in section 3, a dealer who is registered under the , but who is not liable to pay tax under the said section 3, shall nevertheless be liable to pay tax (a) on Sales of goods is respect of the purchase of which he has furnished a declaration under sub sec.
(4) of section 8 of the , and (b) on sales of goods in the manufacture of which the goods so purchased have been used; and accordingly, the provisions of sections 7 to 12 (both inclusive) shall apply to such sales, as they apply to the sales made by a dealer liable to pay tax under section 3.
(2) Every dealer who is liable to pay tax under sub section (1) shall, for the purposes of sections 32, 33, 35, 36, 37, 38, 46, 47 and 48 be deemed to be a Registered dealer.
" It is obvious that if a dealer is not registered under the Bombay Act, it could only be on the basis that he is not liable to pay tax under the Bombay Act, but even so, section 4, sub section (1) provides that if he is registered under the Central Act, he would be liable to pay tax under the Bombay Act in respect of the transactions of sale set out in that section.
This liability arises despite the fact that the dealer, not being liable to pay tax under section 3 of the Bombay Act, is not registered under that Act.
The question then would be: if the dealer is not registered under the Bombay Act, how to recover the tax from him? The dealer not being registered under the Bombay Act, the machinery of the Bombay Act would not of itself apply for recovery of tax from him.
Section 4, sub section (2) therefore enacts that every dealer who is liable to pay tax under sub section (1) shall, for the purposes of sections 32 to 38 and 46 876 to 48 be deemed to be a Registered dealer.
Sections 32 to 38 and 46 to 48 are machinery sections and it is for the purpose of making the machinery of these sections applicable for recovery of the tax imposed on the dealer under sub section (1) of section 4 that an artificial fiction is created deeming the dealer to be a Registered dealer, that is, a dealer registered under section 22 of the Bombay Act.
This legal fiction is created for a specific purpose and it is limited by the terms of sub section 2 of section 4 and it cannot be projected in section 8(ii).
Section 4 has, in fact, nothing to do with section 8(ii).
They are distinct and independent provisions operating on totally different areas, and it is difficult to see how section 4 can be availed of for the purpose of interpreting the expression "Registered dealer" in section 8(ii).
I would therefore set aside the judgment of the High Court under appeal and answer the question referred by the Tribunal in favour of the Revenue and against the assessee.
There will be no order as to costs of the appeal.
SEN, J.
This appeal, by special leave, is from a judgment of the Gujarat High Court, upon a question of law referred to it under sub s.(1) of s.61 of the Bombay Sales Tax Act, 1959 (hereinafter referred to as 'the Act ').
By that judgment the High Court answered the question referred in the affirmative and in favour of the assessee.
The point involved is of considerable importance.
The facts giving rise to the reference were these: Messrs Union Medical Agency, Ahmedabad was, at all material times, carrying on business in spirit and alcohol, and was a dealer registered under s.22 of the Act (hereinafter referred to as 'the assessee ').
In the assessment year 1964 65, the corresponding accounting year of which was the year ending March 31, 1965, the assessee claimed deduction from its turnover in respect of resales of certain goods purchased from one Motibhai Gopalbhai Patel of Baroda who, at the relevant time, was a dealer registered under s.7 of the (hereinafter referred to as 'the Central Act '), but was not a dealer registered under section 22 of the Act.
The Sales Tax Officer rejected the claim of the assessee for such deduction on the ground that the said Motibhai Gopalbhai Patel from whom the goods were purchased was not a registered dealer within the meaning of cl.(ii) of s.8 of the Act inasmuch as he was not registered as a dealer under s.22 of the Act.
The assessee appealed to the Assistant Commissioner of Sales Tax, the only material ground being that the expression 'registered dealer ' in cl.
(ii) of section 8 of the Act was wide enough to 877 include a registered dealer under the but the Assistant Commissioner affirmed the disallowance of the deduction.
On further appeal, the Gujarat Sales Tax Tribunal agreeing with the Sales Tax Authorities, held that in order to claim deduction from the turnover of sales of goods under cl.
(ii) of section 8 of the Act, what was required to be shown was that the goods were purchased by the dealer on or after the appointed day from a 'registered dealer ' under the Act, and that in view of the definition of the expression 'registered dealer ' in sub s.(25) of s.2 of the Act, such dealer had to be a dealer registered under s.22 of the Act.
The Tribunal accordingly held that since Motibhai Gopalbhai Patel, the Baroda dealer, from whom the assessee had purchased the goods, was not a registered dealer under the Act, therefore the requirements of cl.(ii) of s.8 of the Act were not fulfilled, and the claim for deduction made by the assessee had been rightly disallowed.
On the application of the assessee, the Tribunal referred the following question of law to the High Court under sub section
(1) of section 61 of the Act, for its opinion, namely: "Whether for the purpose of allowing deduction from the turnover of sales under clause (ii) of section 8 of the Bombay Sales Tax Act, 1959, purchases of goods made by a dealer registered under the Bombay Sales Tax Act, 1959 from a dealer registered under the but not registered under the Bombay Sales Tax Act.
1959 can be said to be purchases of goods made from a registered dealer within the meaning of clause (ii) of section 8 of the Bombay Sales Tax Act, 1959.
" It appears that the High Court was not satisfied at this formulation as it felt that the statement of the case as made by the Tribunal did not bring out the real question of law arising out of its order.
At the instance of the assessee, it re framed the question in the following terms: "Whether for the purpose of allowing deduction from the turnover of sales under clause (ii) of section 8 of the Bombay Sales Tax Act, 1959, purchases of goods made by a dealer registered under the Bombay Sales Tax Act, 1959 from a dealer who is registered under the and who is liable to pay tax under section 4 of the Bombay Sales Tax Act, 1959 though not registered under the Bombay Sales Tax Act, 1959 can be said to be purchases of goods made from a registered dealer within the meaning of clause (ii) of section 8 of the Bombay Sales Tax Act, 1959.
" 878 We feel that the High Court was not justified in re framing the question as referred.
It is nobody 's case that Motibhai Gopalbhai Patel, the Baroda dealer from whom the assessee had purchased the goods, had ever paid any tax on the sales effected by him under s.4 of the Act.
Nor is there any material on record to suggest that any proceedings were started against the Baroda dealer for subjecting the transactions to tax.
In answering the reference in the affirmative, in favour of the assessee and against the Commissioner of Sales Tax, the High Court observes: "The result of the foregoing discussion is that having regard to the context, collocation and the object of the expression 'registered dealer ' in clause (ii) of section 8 of the Bombay Act, and having regard to the policy of the Act, the said expression would also include a dealer registered under the Central Act on whom special liability to pay sales tax has been imposed under section 4 of the Act.
A dealer who purchases goods from a dealer registered under the Central Act, who is liable to pay sales tax on the sale of the said goods by virtue of the provisions of section 4 of the Bombay Act, would, therefore, be entitled to deduct from his turnover of sales of goods, resales of goods so purchased by him on or after the appointed day if the goods, at the time of their purchase, were goods specified in Schedule C." This conclusion of the High Court can hardly be supported.
The short question that falls for determination in the appeal is whether the expression 'registered dealer ' in cl.(ii) of s.8 of the Act must bear the meaning that is assigned to it in section 2(25) which is the definition section, or the said expression is capable of bearing an enlarged meaning, in view of the subject and context in which it is used in cl.(ii) of s.8 of the Act.
The decision of the appeal must turn on the construction of cl.(ii) of s.8 of the Act, which provides: "8.
There shall be levied a sales tax on the turnover of sales of goods specified in Schedule C at the rate set out against each of them in column 3 thereof, but after deducting from such turnover: (i) * * * * * * * (ii) resales of goods purchased by him on or after the appointed day from a Registered dealer if the goods at the time of their purchase were goods specified in Schedule C." 879 In the Act, the expression 'registered dealer ' is defined in section 2(25) in these terms: "2.
In this Act, unless the context otherwise requires, (25) "Registered dealer" means a dealer registered under section 22.
" The error in the decision of the High Court lies in its misunderstanding of the scope and effect of section 4 of the Act, which it has tried to project into cl.
(ii) of section 8 and it reads as follows: "4.
(1) Notwithstanding anything in section 3, a dealer who is registered under the , but who is not liable to pay tax under the said section 3, shall nevertheless be liable to pay tax (a) on sales of goods in respect of the purchase of which he has furnished a declaration under sub section (4) of section 8 of the , and (b) on sales of goods in the manufacture of which the goods so purchased have been used, and accordingly, the provisions of sections 7 to 12 (both inclusive) shall apply to such sales, as they apply to the sales made by a dealer liable to pay tax under section 3.
(2) Every dealer who is liable to pay tax under sub section (1) shall, for the purposes of sections 32, 33, 34, 35, 36, 37, 38, 46, 47 and 48 be deemed to be a Registered dealer.
" Sub section (3) of section 7 reads: "7.(3) In order to ensure that after the date of the coming into force of section 15 of the , tax shall not be levied on the sales or purchases of Declared goods at more than one stage, it is hereby provided that if under this Act or any earlier law, any tax has been levied or is leviable on the sale or purchase of such goods then no further tax shall be levied under this Act on any subsequent sale or purchase thereof; and accordingly, for the purpose of arriving at the taxable turn over of sales or purchases of a dealer, there shall be deducted from his total turnover of sales, or as the case may be, of purchases, the sales or purchases of such declared goods as have borne tax at any earlier stage.
" There is no obscurity in the language of cl.
(ii) of section 8 of the Act.
It is clear from the terms of cl.
(ii) of section 8 that no deduction is claimable in respect of resales of goods purchased from a dealer registered under the Central Act, who is not a registered dealer within the meaning of section 2(25) of the Act.
It follows that the 880 expression 'registered dealer ' in cl.
(ii) of section 8 of the Act must bear the meaning of that expression as given in section 2(25) of the Act.
If the meaning of the section is plain, it is to be applied whatever the result.
It is a well settled principle that when a word or phrase has been defined in the interpretation clause, prima facie that definition governs whenever that word or phrase is used in the body of the statute.
But where the context makes the definition clause inapplicable, a defined word when used in the body of the statute may have to be given a meaning different from that contained in the interpretation clause; all definitions given in an interpretation clause are, therefore, normally enacted subject to the usual qualification 'unless there is anything repugnant in the subject or context ', or 'unless the context otherwise requires '.
Even in the absence of an express qualification to that effect such a qualification is always implied.
The expression 'registered dealer ' having been defined in s.2(25) of the Act as having a particular meaning, i.e., a dealer registered under section 22 of the Act, it is that meaning alone which must be given to it in interpreting cl.
(ii) of s.8 of the Act, unless there is anything repugnant to the context.
It was not permissible for the High Court to ignore a statutory definition and give to the expression a wider meaning independent of it.
There is nothing to suggest that the expression 'registered dealer ' is used in cl.
(ii) of s.8 of the Act in any different sense from that in ' which it is defined.
It is significant to notice that whenever the legislature wanted that the expression 'registered dealer ' should have a different meaning, it has expressly said so.
Thus in sub s.(1) of s.4 it mentions of 'a dealer who is registered under the '.
The distinction between the two classes of dealers is, therefore, clearly maintained.
The High Court was obviously wrong in not interpreting the expression 'registered dealer ' in the context of cl.
(ii) of s.8 but with reference to the other provisions of the Act, particularly in the light of section 4 of the Act, to give effect to the so called legislative intent for the levy of a single point tax.
It was in error in making an exposition ex visceribus actus and in relying upon the leading cases of Bywater vs Brandling, Rein vs Lane, Jobbins vs Middlesex Country Council Craies on Statute Law, 6th ed., 99, and Maxwell on Interpretation of Statutes, 8th ed., 30.
The High Court expresses the view that the legislative intent in enacting cl.
(ii) of s.8 of the Act is two fold (1) to restrict the levy 881 of sales tax to a single point and to avoid multiple levy of sales tax on goods, and (2) that sales tax should be levied at the stage of the first sale and should be recovered from the registered dealer who effects the first sale and that all subsequent sales of such goods should not be subjected to sales tax over again.
In the light of this so called legislative intention and the policy of the Act, the High Court observes that 'having regard to the context, collocation and the object of the expression 'registered dealer ' in cl.(ii) of s.8 of the Act ', and 'having regard to the legislative intent, namely, to levy a single point tax under sub s.(3) of s.7 of the Act ', the expression 'registered dealer ' in cl.
(ii) of s.8 would also include a dealer registered under the , on whom a special liability to pay sales tax has been imposed under s.4.
Upon that view, it held that a dealer who purchased goods from a dealer registered under the Central Act, who was liable to pay sales tax on the sale of such goods by virtue of the provisions of s.4 of the Act, would be entitled to deduct from his turnover of sales of goods, resales of goods so purchased by him on or after the appointed day if the goods at the time of their purchase, were goods specified in Schedule C of the Act.
It accordingly held that the meaning of the expression 'registered dealer ' in cl.(ii) of s.8 was not limited only to a dealer registered under the Act but it was wide enough to also include a dealer registered under the Central Act.
There is no dispute with the proposition that the meaning of a word or expression defined may have to be departed from on account of the subject or context in which the word had been used and that will be giving effect to the opening sentence in definition section, namely 'unless the context otherwise requires '.
In view of this qualification, the Court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words in a particular section, there is no scope for the application of the rule ex visceribus actus.
This rule is never allowed to alter the meaning of what is of itself clear and explicit.
The authorities relied upon by the High Court are, therefore, not applicable.
While accepting that sub s.(3) of s.7 of the Act was to give effect to cl.(a) of s.15 of the Central Act, and therefore cannot control the interpretation of cl.(ii) of s.8, the High Court commits the mistake of interpreting the expression 'registered dealer ' appearing therein, in the context of s.4 of the Act.
The provisions of s.4, sub s.(3) of s.7 and cl.(ii) of s.8 of the Act operate in three different fields.
882 While s.4 of the Act provides that a registered dealer under the Central Act who may not be liable to pay tax under s.3 of the Act may nevertheless in certain contingencies be liable to pay tax, sub section
(3) of s.7 provides for the levy of single point tax on sales in the course of inter state trade and commerce of declared goods, to bring the Act in conformity with cl.(a) of s.15 of the Central Act.
The object and purpose of enacting the provisions of s.8 are entirely different, namely, to lay down the mode of computation of the turnover of sales or purchases of a registered dealer for the imposition of a tax.
Clause (ii) of s.8 allows for deduction of resales from the turnover of such registered dealer when the goods are purchased from a registered dealer, i.e., a dealer registered under s.22 of the Act.
In effect, s.8 deals with transactions of sale or purchase taking place within the State.
There is a fallacy in the reasoning of the High Court.
It seems that the High Court was obsessed with two factors, namely (1) the concept of a single point tax under sub s.(3) of s.7 of the Act, and (2) the fact that a registered dealer under the Central Act who may not be liable to pay tax under s.3 of the Act may nevertheless in certain contingencies be liable to pay tax.
It failed to appreciate that cl.(ii) of s.8 which allows for deduction of sales by one registered dealer to another, deals purely with inside sales.
The expression 'registered dealer ' in cl.(ii) of s.8 is sought to be given an enlarged meaning by stretching, in effect, the legal fiction contained in sub s.(2) of s.4.
After observing that the legal fiction in sub s.(2) of s.4 is created for a limited purpose, it goes on to observe: "It would, therefore, have been inappropriate or at any rate wholly inartistic for the legislature to provide in sub section (2) of section 4 that every dealer who is liable to pay tax under sub section (1) shall be deemed to be a registered dealer for the purpose of clause (ii) of section 8 since the latter section provides for the levy of sales tax on sales of goods of an altogether different dealer after making certain deduction from the turnover of sales of goods of such dealer.
The legislature could have made a specific provision, if any, in this behalf only in clause (ii) of section 8 and not in sub section (2) of section 4." The High Court proceeds on the hypothesis that the transactions in question must have been brought to tax in the hands of the Baroda dealer and, therefore, it became necessary to avoid multiple levy of sales tax.
On that assumption, it felt that it was necessary to give to the assessee the benefit of s.8(ii) of the Act although the Baroda dealer was not a registered dealer within the meaning of 883 section 2(25) i.e., registered as a dealer under section 22 of the Act.
We regret to say that in reaching that conclusion, the High Court has proceeded on mere conjectures and surmises.
For aught we know, the Baroda dealer at the relevant time, might not be engaged in the business of selling goods in the State of Gujarat and was, therefore, not a dealer liable to pay tax at all.
Perhaps he was primarily engaged in effecting sales in the course of inter State trade and commerce, or it may be that the inside sales effected by him did not exceed the taxable limits.
Both the parties proceeded upon the basis that the purchases effected by the assessee were not subjected to tax.
It was, therefore, not right for the High Court to hold that the disallowance of deduction claimed by the assessee under cl.(ii) of s.8 of the Act would result in double taxation of the same goods.
It is evident that the High Court has completely misdirected itself.
The transactions of sales effected by the Baroda dealer to the assessee who was a dealer at Ahmedabad, were clearly inside sales.
While it is true that the Baroda dealer being a dealer registered under s.7 of the was, in certain contingencies, liable to pay tax under s.4 of the Act, but that circumstance by itself would not make him a 'registered dealer ' within the meaning of section 2(25) of the Act.
If the legislature really intended that the expression 'registered dealer ' in cl.(ii) of s.8 should take within its ambit a dealer registered under the , upon whom liability to pay sales tax is imposed by s.4 of the Bombay Act, it would have said so in clear words.
It would have made necessary provision in that behalf in sub s.(2) of s.4 which provides that every dealer liable to pay tax under sub s.(1) shall be deemed to be a registered dealer for purposes of certain sections of the Bombay Act viz., sections 32, 33, 34, 35, 36, 37, 38, 46, 47 and 48.
It is thus apparent that the legal fiction in sub s.(2) of s.4 is created for a limited purpose, namely, to make section 4 a self contained code which not only imposes a charge of tax and lays down the rate structure, but also provides the machinery for assessment and recovery of tax and penalty.
The legal fiction contained in sub s.(2) of s.4 of the Act cannot be stretched any further.
For these reasons, the judgment of the High Court answering the reference in favour of the assessee is set aside.
The question referred by the Tribunal is answered in the negative and in favour of the Revenue.
There shall be no order as to costs.
S.R. Appeal allowed.
[/INST]Allowing the appeal by special leave and answering against the assessee, the Court.
^ HELD: Per Bhagwati,J. (Concurring with Sen and Venkataramiah, JJ.) (1) The expression "Registered dealer" is used in section 8 (ii) in its definitional sense to mean a dealer registered under section 22 of the Bombay Sales Tax Act and it does not include a dealer under the Central Sales Tax Act.
[875A] (2) The object of section 8 is to prevent a multiple point taxation on goods specified in Schedule C and for imposition of single point tax on them under the Act.
If a dealer is registered only under the Central Act and not under the Bombay Act, it would mean that he is not liable to pay tax under the Bombay Act and in that event, even if he has sold goods specified in Schedule 'C ', to a registered dealer under an intra State sale, no tax would be payable by him on such sale and if the purchasing dealer is also to be exempt from tax in respect of re sale effected by him, the result would be that the goods would escape tax altogether and not suffer even single point tax.
That is not the intendment of the legislature in enacting section 8(ii); on the contrary it would frustrate the very object of that section.
The situation would be the same even where the sale effected by the dealer registered under the Central Act is an inter State sale.
That sale would undoubtedly be taxable under the Central Act but there is no reason why the Gujarat State would give exemption to re sale of goods in respect of which, at the time of the first sale tax has been levied under the Central Act of which the benefit has gone to another State.
Moreover, in such a case, the first sale being an inter State sale, would be taxable at a fixed concessional rate under section 8(1)(a) or at the rate of 7% or at a rate equal to or twice the rate applicable to the sale of such goods in the State of the selling dealer, under clause (a) or (b) of sub section (2) of section 8 of the Central Act and if that be so, it is difficult to understand why the Legislature should have insisted, for attracting the applicability of section 8(ii), that the goods re sold by the dealer should at the time of their first sale be goods specified in Schedule 'C '.
[873F G, 874C G] 871 (3) Sections 4 and 8(ii) of the Bombay Act are distinct and independent provisions operating on totally different areas.
The legal fiction in sub section (1) of section (4) is created for a specific purpose and it is limited by the terms of sub section (2) of section 4 and it cannot be projected in section 8(ii).
If a dealer is not registered under the Bombay Act, it could only be on the basis that he is not liable to pay tax under the Bombay Act, but even so, section 4 sub section (1) provides that if he is registered under the Central Act, he would be liable to pay tax under the Bombay Act in respect of the transactions of sale set out in that section.
This liability arises despite the fact that the dealer, not being liable to pay tax under section 3 of the Bombay Act, is not registered under that Act.
The dealer not being registered under the Bombay Act, the machinery of the Bombay Act would not of itself apply for the recovery of tax from him.
Section 4 sub section 2, therefore, enacts that every dealer who is liable to pay tax under sub section (1) shall, for the purpose of sections 32 to 38 and 46 to 48 be deemed to be a registered dealer.
Sections 32 to 38 and 46 to 48 are machinery sections and it is for the purpose of making the machinery of these sections applicable for recovery of the tax imposed on the dealer under sub section (1) of section 4 that an artificial fiction is created deeming the dealer to be a registered dealer, that is, a dealer registered under section 22 of the Bombay Act.
Per Sen, J. (On behalf of himself and Venkataramiah, J.).
(1) It is a well settled principle that when a word or phrase has been defined in the interpretation clause, prima facie that definition governs whenever that word or phrase is used in the body of the statute.
But where the context makes the definition clause inapplicable, a defined word when used in the body of the statute may have to be given a meaning different from that contained in the interpretation clause; all definitions given in an interpretation clause, are, therefore, normally, enacted subject to the usual qualification "unless there is anything repugnant in the subject or context", or "unless the context otherwise requires".
Even in the absence of an express qualification to that effect such a qualification is always implied.
The expression "registered dealer" having been defined in section 2(25) of the Bombay Act as having a particular meaning, that is, a dealer registered under section 22 of the Act, it is that meaning alone which must be given to it in interpreting clause (ii) of section 8 of the Bombay Act unless there is anything repugnant to the context [880B D] There being no obscurity in the language of clause (ii) of section 8 of the Bombay Act, it is clear that no deduction is claimable in respect of re sales of goods purchased from a dealer registered under the Central Act, who is not a registered dealer within the meaning of section 2(25) of the Act.
It follows that the expression "registered dealer" in clause (ii) of section 8 of the Act must bear the meaning of that expression as given in section 2(25) of the Act.
If the meaning of the section is plain it is to be applied whatever the result, [879H 880A] (2) The meaning of a word or expression defined may have to be departed from on account of the subject or context in which the word had been used and that will be giving effect to the opening sentence in definition section, namely, "unless the context otherwise requires".
In view of this qualification, the Court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words in a particular section.
But where there is no obscurity in the language of the section, 872 there is no scope for the application of the rule ex visceribus actus.
This rule is never allowed to alter the meaning of what is of itself clear and explicit.
[881E G] Bywater vs Brandling, ; Rein vs Lane, and Jobbins vs Middlesex County Council, Craies, , held inapplicable.
(3) The provisions of section 4, sub section (3) of section 7 and clause (ii) of section 8 of the Bombay Act operate in three different fields.
While section 4 of the Act provides that a registered dealer under the Central Act who may not be liable to pay tax under section 3 of the Act may nevertheless in certain contingencies be liable to pay tax, sub section (3) of section 7 provides for the levy of a single point tax on sale in the course of inter State trade and commerce of declared goods, to bring the Act in conformity with clause (a) of section 15 of the Central Act.
The object and purpose of enacting the provisions of section 8 are entirely different, namely, to lay down the mode of computation of the turnover of sales or purchases of a registered dealer for the imposition of a tax.
Clause (ii) of section 8 allows for deduction of re sale from the turnover of such registered dealer when the goods are purchased from a registered dealer, that is, a dealer registered under section 22 of the Act.
In effect, section 8 deals with transactions of sale or purchase taking place within the State.
The disallowance of deduction claimed by the assessee under clause (ii) of section 8 of the Act, therefore, would not result in double taxation of the same goods.
[881H 882C, 883C] While it is true that the Baroda dealer being a dealer registered under section 7 of the Central Sales Tax Act, in the instant case, was in certain contingencies, liable to pay tax under section 4 of the Act, but that circumstance by itself would not make him a "registered dealer" within the meaning of section 2(25) of the Act.
If the legislature really intended that the expression "registered dealer" in clause (ii) of section 8 should take within its ambit a dealer registered under the Central Sales Tax Act, upon whom liability to pay sales tax is imposed by section 4 of the Bombay Act, it would have said so in the clear words section (2) of section 4.
The legal fiction in sub section
(2) of section 4 is created for a limited purpose, namely, to make section 4 a self contained code which not only imposes a charge of tax and lays down the rate structure, but also provides the machinery for assessment and recovery of tax and penalty.
The legal fiction contained in sub section
(2) of section 4 of the Act cannot be stretched any further.
[883D E, G]
</s>
|
<s>[INST] Summarize the judgementl Appeal No. 11 14 of 1976.
From the Judgment and Order dated 22nd September 1976 of the Kamataka High Court in Election Petition No. 1 of 1974.
L. N. Sinha, K. R. Karanah & B. P. Singh for the Appellant.
K. N. Bhat and (Miss) section Pramila for the Respondent No. 1 Y. section Chitley and Narayan Nettar for Respondent No. 2 The Judgment of the Court was delivered by KRISHNA IYER, J.
Four heavy volumes of case records confron ted us in this appeal, as counsel opened the arguments, but some, Socratic processing seemed to condense the controversy and forensic prolixity so much so we first thought the case had shrunk to such small dimensions as to be disposed of in a short judgment.
But what we initially felt, when the brief narration of facts was given, proved a 195 snare.
For, when we read out in court our opinion on the only crucial aspect of the case, counsel for the 1st respondent hopefully insisted that the factual grounds, requiring our ploughing through ponderous tomes of testimonial collection, pleadings and what not, should be investigated as he expected to sustain the invalidation of the election by the High Court on the score of corrupt practice and the consequential disqualification of the rival candidate i.e., the appellant before us.
He was entitled to press that part of his case and so we agreed to hear both sides extensively thereon.
However, hours of argument after, we were back to square one.
At this stage, some relevant facts and circumstances need narration.
The Karnataka Legislative Council has, in its composition, some members elected from the local authorities constituencies.
One such member is elected by the local bodies of Bidar district and the specific election that falls for decision was held on May 12, 1974.
According to the calendar for the poll contemplated in s.30 of the Representation of the People Act, 1951 (hereinafter called the 1951 Act), the last date for presenting the nominations was appointed as April 17, 1974.
Section 33(1) requires that each candidate shall deliver to the returning officer a nomination paper as set out in the section 'between II o 'clock in the forenoon and 3 o 'clock in the after noon '.
The appellant and the first respondent did file their nomi nations in conformity with the law; their scrutiny over, they entered the fray and, after the poll was over, the appellant was declared elected, having secured 64 votes as against the 1st respondent 's 54 votes.
The frustrated 1st respondent found 16 illegitimate votes having been cast in favour of the successful candidate and further discovered that these 16 electors were ineligible to figure on the electoral roll but had been surreptitiously introduced therein by collusion, fraud and other improper machinations in which the returned candidate and the returning officer were collaborative actors.
The purity of the election was polluted.
The result of the poll was materially affected.
The electoral process was vitiated by 'corrupt practice ' in which the appellant and the 2nd respondent were particeps criminis.
He ventured on an election petition with the prayer to set aside the poll verdict inter alia under section 123(7) of the 1951 Act and also sought a declaration 'that he was duly elected on the score that the exclusion of the invalid votes, very probably cast in favour of the appellant, led inevitably to his arithmetical success as the one who had secured the larger number of valid votes.
Such was his case.
The petitioner had made somewhat vague, sweeping and speculative allegations about government, higher and lower echelons of officialdom and the rival candidate but, if an apology for specificity is partially present in the petition, it is about the charge of corrupt practice roping in the returning officer cum electoral registering officer (2nd respondent) and the successful candidate (appellant).
No issue was originally framed on the critical question of corrupt practice but the learned judge permitted evidence thereon to be adduced a procedure difficult to appreciate.
After the trial was virtually closed and the arguments finished, the Court discovered the need for framing this decisive issue.
On objection as to the absence of material facts and 196 or material particulars, the learned Judge framed an issue also on the actual vagueness and legal flawsomeness of pleadings on corrupt practice.
Naturally, this latter question demanded prior decision but, curiously, the Court delivered all its findings, on the day of judgment, a faux pas which we must point out.
Processual proprieties are designed to ensure fair play in adjudications and while such prescriptions are not rigid punctilios, their observance serves to help the judge do, effective justice between parties and the disputants have faith in the intelligent impartiality and full opportunity so necessary for the success of the rule of law.
In election proceedings where the whole community is silently present and the controversy is sensitive and feelings suspicious, the principles of procedural rectitude apply a fortiori.
The judge is the guardian of processual justice and must remember that judgment on judgment belongs, in the long run, to the people.
We state this stern proposition here not merely because a forensic stitch in time saves cassational nine but because courts are on continuous trial in a democracy.
In this case we are not satisfied that either party has suffered in substance and procedural breaches, unless they spell unmerited prejudice, may be brushed aside at the appellate level.
Having said this, we hasten to add that had not the learned judge uncovered the suspect happenings sinisterly hovering around the last day for finalising the electoral roll, the dubious doings of the political government in a seat hungry setting might not have been ventilated for public edification.
The electoral events brought out in evidence are 'power ' portents 'to be prevented preemptively by law and this prompts us to deal with the testimonial circumstances surrounding the inviolable roll of voters having been adulterated after the final hour, zealous officers frantically exerting themselves in what seems at first sight to be a series of belated circus operations geared to inclusion of additional names in the rolls before 17th mid night drew the curtain.
Caesar 's wife must be above suspicion and wielders of public power must fill this bill.
A moral matrix and administrative culture must nurture the power process if democracy is not to commit suicide.
We will make good the relevance of these critical statements with reference to the incontrovertible facts of this case.
However, we do not delve into the minutiae of evidence or span the entire factual range, that being otiose.
A catalogue of circumstances, fair to both sides, will tell its own moral tale and so we set it out.
The last date for completing the electoral roll was April 17, 1974.
The rival candidates (the appellant and the 1st respondent) belonged to opposing political parties but the appellant"s party was in power.
Both the candidates had semi V.I.P. status in their respective parties.
One member more in the Legislative Council would, pro tanto, strengthen the Ministry.
This political backdrop be lights some of the things which occurred on the, dates proximate to the completion of the electoral roll.
The administrative locomotion and the human motivation behind what the trial judge had described as 'manouvres ' is simple to understand, although, as will be shown below, we do not agree 197 wholly with all the deductions of the High Court.
A particular party is in office.
The strength of its members in both Houses is therefore of political significance, especially if fluid Politics turns out to be the field of all possibilities.
Karnataka has a bicameral legislature, and it is reasonable to suppose that the political government has an understandable concern in the election of a member of the Legislative Council, who will be of their party.
Bidar district in Karnataka has a local authorities constituency seat, to be elected by the members of the local bodies there.
It follows that the potential electors who are likely to favour their candidate must be brought on the rolls to ensure his victory.
Inevitably there was therefore keen interest in incorporating in the electoral roll the members of the Taluk Development Board, Bidar (for short, the Bidar Board).
The election to the Bidar Board had taken place years ago, 11 of them having been elected way back in 1968 and 8 later.
The election of the 11 members had been duly notified in 1968 but the Board itself stood suspended, an Administrator having been appointed to run its affairs.
8 members who had been later elected to the Board landed up in the High Court on account of writ petitions filed by their rivals.
Stay had been granted by the High Court and this led to an absence of 2/3 of the total members being able to function, statutorily necessitating the appointment of an Administrator.
Long later the High Court disposed of the writ petitions whereby 3 returns were set aside and 5 upheld.
The arithmetical upshot of these happenings was that there were 16 members duly elected to the Bidar Board, and the High Court having disposed of the writ petitions in June 1972, the local body could have been liberated from the bureaucratic management of an Administrator and allowed to function through elected representatives.
All that was needed to vivify this body of local self government was a notification under the Mysore Village Panchayats Act X of 1959, terminating the Administrator 's term, and perhaps another extending the terms of some members.
Elections to local bodies and vesting of powers in units of self government are part of the Directive Principles of State Policy (article 40 of the Constitution) and, in a sense, homage to the Father of the Nation, standing as he did for participative democracy through decentralisation of power.
Unfortunately, after holding elections to the Bidar Board and making people believe that they have elected their administrative representatives at the lowest levels, the State Government did not bring to life the local board even long after the High Court had disposed of the challenges to the elections in June 1972.
A government, under our Constitution, must scrupulously and energetically implement the principles fundamental to the governance of the country as mandated by article 37 and, if even after holding elections Development Boards are allowed to remain moribund for failure to notify the curtailment of the Administrator 's term, this neglect almost amounts to dereliction of the constitutional duty.
We are unhappy to make this observation but power to the people, which is the soul of a republic, stands subverted if decentralisation and devolu tion desiderated in article 40 of the Constitution is ignored by executive inaction even after holding election to the floor level administrative 198 bodies.
The devolutionary distance to ideological Rajghat from power jealous State capitals is unwillingly long indeed, especially in view of the familiar spectacle of long years of failure to hold elections, to local bodies, supersession aplenty of local self government units, and gross inaction even in issuing simple notifications without which elected bodies remain still born. 'We, the people ' is not constitutional mantra but are the power holders of India from the panchayat upward.
Back to the main trend of the argument.
It became now compulsive for the party in power to de notify the Administrator and revive the elected body if they wanted the members of the Bidar Board to vote perhaps in favour of their candidate.
The 11 members elected long back in 1968 could not vote, on account of the expiry of the 4year term unless in view of section 108 of Act 10 of 1959, the government issued another notification extending the term of office of these members.
So the elective interest of the candidate of the party in power could be promoted only if three or four quick administrative steps were taken.
Firstly, there was to be a notification ending the Administrator 's term over the Bidar Board.
Secondly, there was to be a notification extending the term of the 11 members elected in 1968.
Thirdly, there was to be a notification of the election of the 5 members whose return had been upheld in the High Court in June 1972.
Fourthly, the electoral roll had to be amended by inclusion of these 16 names.
If these steps were duly taken, 16 additional members would become electors and the party in power (if these electors be longed to that party or were under its influence) could probably expect their votes.
The poll results show that the contest was keen and these 16 votes would have been of great moment.
In this high risk predicament, long bureaucratic indolence in issuing notifications and political indifference to the functioning of local bodies produced a situation where the elected roll did not contain the names of the 16 members of the Bidar Board.
Only a few days prior to April 17, 1974 the D day the affected candidate, i.e., the appellant, moved the government for initiation of the steps mentioned above ' but nothing happened.
On April 16, the day before the crucial date for closing the electoral roll, i.e., the last date for making nominations, the appellant moved the Minister concerned who was in Bidar to get the necessary administrative steps taken quickly.
He also moved the returning officer, RW 2.
We find the Minister making an endorsement on the petition.
We notice the returning officer seeking telegraphic instructions from government.
We see government sending an Under Secretary, PW 3, by air from Bangalore to Hyderabad and onward by car to Bidar with some orders.
This PW 3 probably apprised the returning officer RW 2 about orders having been passed raving the way for inclusion of the 16 names in the electoral roll.
PW 3, the Under Secretary, for reasons not known, makes a bee line the same evening to Gulbarga where be meets the Minister.
The returning officer does not have with him any gazette ' notifications.
as we see that under section 2(20) of Act X of 1959, a notification must possess the inalienable attribute of publication in the official gazette.
Admittedly, the returning officer did not come by any 199 of the necessary notifications before the evening of the 17th.
Admittedly, he did not have any gazette notifications before April 25th.
Under section 27 of the Representation of the People Act, 1950, the electoral registration officer who, in this case, is also the returning officer, had to have before him gazette notifications which clearly he did not have till the 25th, i.e., 8 days after the relevant date.
Nevertheless he, obligingly enough including the 16 names which was in breach of the legal provisions.
Frenzied official movements on and after April 16 are visible in this case.
The scenario excites suspicion.
The candidate meets the Minister of his party on the 16th.
The returning officer takes the unusual steps of sending a telegram for instructions from government for inclusion of names in the electoral roll.
The Secretariat despatches an Under Secretary to reach Bidar by air dash and long car drive.
A meeting between the Under Secretary and the electoral registration officer follows and then the Under Secretary winds up the day by meeting the Minister, presumably to report things done, and the registration officer supplements the electoral roll by including 16 more names, without getting the gazette notification.
We have no doubt, as we will presently explain, that this inclusion is invalid, but what we are presently concerned with is the protracted inaction for years of the State government in issuing simple notifications to resuscitate the Bidar Board and the sudden celerity by which a quick chase and spurt of action resulting in a Minister 's endorsement, the regis tration officer 's telegram, Secretariat hyper busyness, the unusual step of an Under Secretary himself journeying with government orders to be delivered to the registration officer, the electoral registration officer hastening to amend the, electoral roll slurring over the legal require ment of a gazette notification and making it appear that everything was done on the 17th before mid night, and a few other circumstances, make up a complex of dubious doings designed to help a certain candidate belonging to the party in power.
The officers had no, personal interest as such and, in fairness, we must state the High Court has exonerated them of any oblique conduct to further their own interests.
We wish to state clearly that having taken a close look at the developments we are not inclined to implicate any of the officers and there are quite a few involved with mala fide conduct or collusion with the returned candidate.
Legal peccadilloes are not fraud or collusion without more.
However, the performance of the political government and the pressurization implicit in the hectic activities we have adverted to, read in the light of the likely political gains accruing to the party in power, generate apprehensions in our minds about the peril to the electoral process if poli tical bosses in office rubberise the public services to carry out behests which are contrary to the law but non compliance with which might be visited with crypto punitive consequences.
We would have taken a harsher view against the public servants bad we something more than what may even be a rather strong suspicion of obliging deviance.
Sometimes they are transfixed between Scylla and Charybdis.
Even 200 strong suspicion is no substitute, for proof.
It has often been said that suspicion is the Upas tree under whose shade reason fails and justice dies.
There is, a core of truth in this caveat.
Shri Bhat, counsel for the 1st respondent, argued his case strenuously but could not make out that vital nexus between the candidate who stood to gain and the officers whose action he impugned.
over, the movements of the Minister at about that time raises doubts and the huge expenditure involving in rushing an Under Secretary from Bangalore by air and road to Bidar were a drain on the public exchequer which could have been avoided if action had been taken in time by a few postal communications.
But the trial judge erred in substituting suspicion for certitude and drawing untenable inferences where paucity of evidence snapped the nexus needed for collusion.
A court must, as usual, ask for proof beyond reasonable doubt from the party setting up corrupt practice even when there is a veneer of power politics stooping to conquer and officers thereby becoming vulnerable to 'higher displeasure.
The faith of the people in the good faith of government is basic to a republic.
The administrative syndrome that harms the citizens ' hopes in the State often manifests itself in callously slow action or gravely suspicious instant action and the features of this case demonstrate both.
Pi Admittedly, the Bidar Board elections were substantially over in 1968 and were more or less complete in 1972 and yet the necessary notifications in the gazette, which are the statutory precondition for the local body to be legally viable, were, for years, not published and, when the critical hour for the electroal list to be finalised fell at 3 p.m. on April 17, 1974, the government and its officer,,, went through exciting exercises unmindful of legal prescriptions and managed the illegitimate inclusion of 16 names in the electoral roll.
We hope that the civil services in charge of electoral processes which are of grave concern for the survival of our democracy will remember that their masters in statutory matters are the law and law alone, not political superiors if they direct deviance from the dictates of the law.
It is never to be forgotten that our country is committed to the rule of law and therefore functionaries working under statutes, even though they be government servants, must be defiantly dedicated to the law and the Constitution and, subject to them, to policies, projects and directions of the political government.
"Be you ever so high, the law is above you" this applies to our Constitutional order.
Shri Bhat, counsel for the 1st respondent ultimately argued these aspects of the case.
But, when we were more than half way through, it became clear that the material link to make out invalidation of the election on account of 'corrupt practice under section 123(7) of the 1951 Act was missing because it had not been made out in the evidence that there was collusion between the 2nd respondent and the appellant.
At that stage, taking a realistic stance, counsel acceded to our view that while there was sufficient room for the 1st respondent to be 201 disturbed about the electoral verdict on the score of the inclusion of 16 names there was not any telling material, other than speculation or weak suggestion, that there was corrupt participation on the part ,,of the officers.
If this position were right and we hold it is what remains to be done is to ascertain the legal effect of the inclusion in the electoral roll of the new names after the expiry of the appointed ,hour and date.
According to the calendar for the poll contemplated in section 30 of the 1951, Act the last date for making the nominations was appointed as April 17, 1974.
Section 33(1) of the 1951 Act requires that each , candidate shall deliver to the Returning officer a nomination paper as set out in the section : "between 11 o 'clock in the forenoon and 3 o 'clock in the afternoon".
The appellant and the 1st respondent did ,file their nominations in conformity with sections 30 and 33 of the 1951 Act but the electoral registration officer 2nd respondent in the appeal), included the names of 16 persons representing the Bidar Board after 3 p.m. of April 17, 1974.
There is a dispute between the parties as to whether such inclusion was directed on the 17th (after 3 p.m.) or on the 18th, the former being the case of the appellant as well as the 2nd respondent, the latter being the case of the 1st respondent and upheld by the High Court.
The Court held that, in law, any inclusion of additional names in the electoral roll of a constituency after 3 p.m. on the last date for making nomination fixed under section 30(a) of the 1951 Act was illegal.
Consequently.
it arrived at the follow up decision that the 16 votes which had been cast by those objectionably added, had to be ignored.
On a further study of the evidence, the Court concluded that these 16 votes had been cast in favour of the elected candidate and should therefore be deducted from his total tally.
The appellant, who had secured 64 votes as against respondent no. 1 's 54, had only a lead of 10 votes.
He slumped below the 1st respondent when 16 votes were deducted from his total.
The necessary result, in the view of the High Court, was that not only had the appellant 's election to be set aside but the 1st respondent deserved to be declared duly elected.
This was done.
An appreciation of the evidence bearing on the question as to whether the 2nd respondent i.e., the Registration officer bad acted under the appellant 's oblique influence in including the additional names after the last date for such inclusion, has led us to overturn the affirmative answer from the learned trial judge.
The holding that a 'corrupt practice ', within the ambit of section 123, had been committed by the appellant who was therefore disqualified under section 8A led to two consequences.
The appellant, who had won the election at the polls, lost the election in the court and, worse still, suffered a six year disqualification.
The doubly aggrieved appellant has challenged the adverse verdict and the wounded 2nd respondent (electoral registration officer) has separately appeared to wipe out the damaging effect of the obliging inclusion of names of electors after the time set by the law was over.
We have already set aside the finding under section 123(7) of the 1951 Act, of corrupt practice and with it falls the disqualification.
2 768 SCI/77 202 The short point, whose impact may be lethal to the result of the election, is as to whether section 23 of the 1950 Act should be read down in conformity with sections 30 and 33 of the 1951 Act.
The proposition,, which has appealed to the High Court, has the approval of the ruling in Baidyanath(1).
The Court, there, observed: "in our opinion cl.
23(a) takes away the power of the electoral registration officer or the chief electoral officer to correct the entries in the electoral rolls or to include new names in the electoral rolls of a constituency after the last date before the completion of that election.
It interdicts the concerned officers from interfering with the electoral rolls under the prescribed circumstances.
It puts a stop to the power conferred on them.
Therefore it is not a question of irregular exercise of power but a lack of power.
(p.842 We have earlier come to the conclusion that the electoral registration officer had no power to include new names in the electoral roll on April 27, 1968.
Therefore votes of the electors whose names were included in the roll on that date must be held to, be void votes." (p. 843) There is a blanket ban in section 23(3) on any amendment, transposition or deletion of any entry or, the issuance of any direction for the inclusion of a name in the electoral roll of a constituency 'after the last date for making nominations for an election in that constituency.
This prohibition is based on public policy and serves a public purpose as we will presently bring out.
Any violation of such a mandatory provision conceived to preempt scrambles to thrust into the rolls, after the appointed time, fancied voters by anxious candidates or parties spells invalidity and we have, therefore, no doubt that if in flagrant violation of section 23(3), names have been included in the electoral roll, the bonus of such illegitimate votes shall not accrue, since the vice of avoidance must attach to such names.
Such void votes cannot help a candidate win the contest.
Why do we say that there is an underlying public policy and a paramount public purpose served by section 23(3) ? In our electoral scheme as unfolded in the 1951 Act, every elector ordinarily can be a candidate.
Therefore, his name must be included in the list on or before the date fixed for nomination.
Otherwise he losses his valuable right to run for the elective office.
It is thus vital that the electoral registration officer should bring in the names of all the electors into the electoral roll before the date and hour fixed for presenting the nomination paper.
There is another equally valid reason for stressing the inclusion of the names of all electors before (1) [1970] 1.S.C.R. 839.
203 the hour for delivering to the returning officer the nomination paper.
Section 33(4) of the 1951 Act reads "(4) On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the Candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls : x x x x" In the light of this provision the returning officer, on receipt of the nomination paper, satisfies himself that the candidate 's name and electoral roll number are correctly entered.
Necessarily, this is possible only if the electoral roll contains the names of all the electors.
Likewise, section 33(5), which deals with a candidate who is an elector from a different constituency, requires of the candidate the production of a certified copy of the relevant entry showing his name in such a roll.
The inference is inevitable that there must be a completed electoral roll when the time for filing the nomination paper expires.
The argument is therefore incontrovertible that the final electoral roll must be with the returning officer when the last minutes for delivering the nomination paper ticks off.
Subsequent additions to the electoral register will inject confusion and uncertainty about the constituents or electors, introduce a disability for such subsequently included electors to be candidates for the election and run counter to, the basic idea running through the scheme of the Act that in the preponderant pattern of elections, viz., for the legislative assemblies and parliament, the electors shall have the concomitant right of being candidates.
The cumulative effect of these various strands of reasoning and the rigour of the language of section 23(3) of the 1950 Act leaves no doubt in our minds that inclusion of the names in the electoral roll of a constituency after the last date for making nominations for an election in that constituency, must be visited with fatality.
Such belated arrivals are excluded by the talons of the law, and must be ignored in the poll.
It is appropriate to quote from Baidyanath(1) here : "The object of the aforesaid provision is to see that to the extent possible, all persons qualified to be registered as voters in any particular constituency should be duly registered and to remove from the rolls all those who are not qualified to be registered.
Sub section
(3) of section 23 is not an important exception to the rules noted earlier.
It gives a mandate to the electoral registration officers not to amend, transpose, or delete any entry in the electoral roll of a constituency after the last date for making nominations for election in that constituency and before the completion of that election.
If there was no such provision, there would have been room for considerable manipulations, particularly when there are only limited number of electors in a constituency.
But for that (1) ; ,842.
204 provision, it would have been possible for the concerned authorities to so manipulate the electoral rolls as to advanced the prospects of a particular candidate.
" A more trickly issue now arises, Assuming April 17, 1974 to be the last date for filing nominations (and it is so in the case), can the electoral roll be amended on that date to include additional names, but after the hour set for presenting the nomination paper ? Section 33(1) specifies inflexibly that the nomination paper shall be presented between the hours of 11 o 'clock in the forenoon and 3 o 'clock in the afternoon '.
That means that the duration of the day for presentation of nomination papers terminates at 3 o 'clock in the afternoon.
If an elector is to be able to file his nomination paper, his name must be on the electoral roll at 3 p.m., on the last day for filing nominations.
So the temporal terminus adquem is also the day for finalisation ofthe electoral register and by the same token, that day terminates atjust that hour when the returning officer shuts the door.
The day is truncated to terminate with the time when reception of nominations closed.
Section 23 of the 1950 Act does state that the inclusion of the names in the electoral roll can be carried out till the last date for making nominations for an election in the concerned constituency.
What, then, is the last date? When does the last date cease to be? If the purpose of the provision were to illumine its sense, if the literality of the text is to be invigorated by a sense of rationality, if conscionable commonsense were an attribute of 'statutory construction, there can hardly be any doubt that the expression 'last date for making nominations ' must mean the last hour of the last date during which presentation of nomination papers is permitted under section 33 of the 1951 Act.
In short, section 23 (3) of the 1950 Act and section 33(1), (4) and (5) of the 1951 Act interact, fertilise and operate as a duplex of clauses.
So viewed, the inclusion of the names in the electoral roll after 3 p.m., on April 17, 1974, is illegitimate and illegal.
At this stage, it may be appropriate to make reference to Ramji Prasad Singh(1) to which one of us was a party.
Indeed, attention of counsel was invited to this decision by the Court.
That case turned on the inclusion of 40 voters in contravention of section 23(3) of.
the 1950 Act.
By incorporating in the electoral roll new names after the last date for filing nomination, this Court held that such inclusion of new names would be clearly in breach of the mandate contained in section 23(3) of the 1950 Act and, therefore, beyond the jurisdiction of the electoral registration officer.
This view is precisely what we have taken in the present case.
In that case this Court, on fact, took the view that the communication from the Chief Executive Officer of the local authority to substitute certain new names in the electoral roll could not have been acted upon (1) ; 205 before April 6, 1972, the last date of nomination being April 5, 1972.This is clear from the following observation in the judgment : "In fact the letter was 'diarised ' by Shri Bose 's office on the 6th.
The fact of the matter seems to be that the notifications of the 4th April came too late for being acted upon before the dead line, which was the 5th.
The red tape moved slowly, the due date expired and then every one awoke to the necessity of curing the infirmity by hurrying with the implementation of the notifications.
But it was too late and the law had already put in seal on the electoral roLL as it existed on the 5th April.
It could not be touched thereafter, until the completion of the election.
" This Court, in that case, observed that it was 'impossible to accept the half hearted claim of Shri Bose that he passed orders for inclusion of the new names on the 5th itself '.
This Court was not called upon to go into the question as to what would be the legal position if the electoral rolls were actually amended at 11.30 p.m. on 5th April after the last hour for the nomination, viz., 3 p.m. on that day.
This finer facet which falls for consideration in the present appeal viz., whether the 'last day ' contemplated in section 23(3) of the 1950 Act ends at 3 p.m. on that day for the purpose, or continues until mid night did not actually arise for judicial investigation in Ramji Prasad 's Case(supra).
The upshot of the above interpretation is that the 16 names which have been brought into the electoral register subsequent to 3 p.m. of April 17, 1974 must be excluded from the reckoning to determine the returned candidate.
The learned Judge has declared the 2nd respondent duly elected on the strength, mainly, of inference drawn from the oral evidence of the rival candidates.
The ballots are alive, and available and speak best.
Why, then, hazard a verdict on the flimsy foundation of oral evidence rendered by interested parties ? The vanquished candidate 's apse digits or the victor 's vague expectations of voters ' loyalty the grounds relied on are shifting sands to build a firm finding upon, knowing how notorious is the cute art of double crossing and defection in electoral politics and how undependable the testimonial lips of partisans can be unless authenticated by surer corroboration.
Chancy credulity must be tempered by critical appraisal, especially when the return by the electoral process is to be overturned by unsafe forensic guesses.
, And where the ground for recount has been fairly laid by testimony, and the ballot papers, which bear clinching proof on their bosoms, are at hand, they are the best evidence to be looked into.
No party can run away from their indelible truth and we wonder why the learned judge avoided the obvious and resorted to the risky.
May be thought reopening and recount of ballots may undo the secrecy of the poll.
We are sure that the correct course in the circumstances of this case is to send for and scrutinize the 16 ballots for the limited purpose of discovering for whom, how many of the invalid sixteen have been cast.
Secrecy of ballot shall be maintained when scrutiny is conducted and only that part which reveals the vote (not the persons who voted) shall be open for inspection.
206 What, then, is the result of the reasonings which have prevailed with us ? It is simply this, viz., that the 16 votes of the members of the Bidar Board should be excluded and the consequential tilting of the result re discovered.
We are, therefore, constrained to direct the High Court to send for the ballot papers and pick out the 16 ballots relating to the Bidar Board members, examine them without exposing the identity of the persons who have voted and to whom they have voted and record a rectally excluding these 16 tainted votes from the respective candidates.
It the resultant balance sheet shows that the appellant has polled less valid votes than the 1st respondent, his election will be set aside and the 1st respondent declared duly elected.
If, on the other hand, despite these deletions the appellant scores over the 1st respondent, his return will be maintained.
Any way, counsel on both sides agree that the best course will be to call for a report from the High Court in the light of the operations above indicated.
The learned Single Judge who heard the case will examine the 16 ballots as directed above consistently with natural justice, record the number of votes out of the 16 each has got and forward to this Court a comprehensive and correct statement with the necessary particulars.
This report shall be made within 3 weeks from the receipt of the records from this Court and the appeal shall be posted for disposal immediately the report reaches.
With these directions we dispose of the appeal pro tempore.
By way of post script, we may state that counsel for the 1st respondent submitted, after we crystallized the directions indicated above, that he was not too sure whether the 16 ballot papers could be identified.
The appellant 's counsel, however, asserted that there were numbers indelibly imprinted on the reverse of the ballot papers and, as such, the identification of 16 impugned votes may not present a problem.
In the event of impossibility of fixing identity, a report to.
that effect will be forthcoming from the High Court and we may, notwithstanding the observations about the oral evidence made above, rehear the case with a view to record our finding as to which way the voting went, out of the offending 16, so that we may determine whether the result of the election has been materially affected.
If it is not possible, further suitable directions will be considered.
We may also mention that at one stage of the arguments Shri L.N. Sinha drew our attention to a designedly wide amendment to the Act of 1951 made in the wake of the election case of Smt.
Indira Gandhi.
Its validity, for our provisions, has been upheld by this Court in Smt.
Indira Nehru Gandhi vs Raj Narain(1).
It was pressed before us that with the re definition of 'candidate ' in section 79(b) and the addition of a proviso to section 127(7), by Act XL of 1975, the present election petition had met with its statutory Waterloo.
But Shri Bhat urged that his averments of officials ' abetment of promotion of the appellant 's candidacy related also to a point of time after the nomination paper was filed.
He also submitted that the imputations against the electoral registration officer were so far beyond his duties that the blanket proviso could not protect the acts.
Since we have taken the view that corrupt practice, even under the amended section 123(7), has not been established, (1) 207 the pronouncement on the exonerative efficacy of the amended Act does not arise.
But officials must realise and so too the highest in Administration that the proviso to section 123(7) does not authorise ,out of the way doings which are irregular.
A wrong does not become right if the law slurs over it.
We part with this case with an uneasy mind.
There is a finding by the High Court that an influential candidate had interfered with officials to adulterate an electoral roll.
We have vacated the finding but must warn that the civil services have a high commitment to the rule of law, regardless of covert commands and indirect importunities of bosses inside and outside government.
Lord Chesham said in the House of Lords in 1958 : "He is answerable to law alone and not to any public authority.".
A suppliant, obsequious, satellite public service or one that responds to allurements promotional or pecuniary is a danger to a democratic polity and to the supremacy of the rule of law.
The courage and probity of the hierarchical election machinery and its engineers, even when handsome temptation entices or huffy higher power browbeats, is the guarantee of electoral purity.
To conclude, we are unhappy that such aspersions against public servants affect the integrity and morale of the services but where the easy virtue of an election official or political power wielder has distorted the assembly line operations, he will suffer one day.
Be that as it may, we express no final opinion beyond what has already been said.
P.B.R. Appeal allowed in part.
[/INST]Article 171(3) of the Constitution of India provides that of the total number of members of the Legislative Council of a State one third shall be elected by electorates consisting of members, among others, of local authorities in the State as Parliament may by law specify.
Part IV of the Representation of the People Act, 1950 which deals with electoral rolls for council constituencies provides in section 23(3) that no amendment, transposition or deletion of any entry shall be made under section 22 and no direction for the inclusion of a name in the electoral roll of a constituency shall be given under this section after the last date for making nominations for election in that constituency.
Section 33(1) of the Representation of the People Act, 1951 requires that each candidate shall deliver to the Returning Officer a nomination paper "between 11 o 'clock in the forenoon and 3 o 'clock in the afternoon.
" By a notification issued under section 30 of the Representation of the People Act, 1951 the Electoral Registration Officer appointed April 17, 1974 as the last date for presenting nomination papers from the local authorities constituency.
In the election that ensued the appellant was declared elected with 64 votes polled by him as against 54 polled by respondent No. 1.
In his election petition the respondent alleged that the appellant, in collusion with the electoral officer, surreptitiously introduced names of 16 persons representing a taluk board after 3 p.m. on April 17, 1974 and that this act of his constituted a corrupt practice within the meaning of section 123 of the 1951 Act and that the election was void.
The High Court set aside the election on the ground that any inclusion of additional names in the electoral roll of a constituency after 3 p.m. on the last date for making nominations fixed under section 30(a) was illegal, and after deducting the 16 votes cast by those persons from the total votes polled by the appellant, declared the respondent duly elected.
Allowing the appeal in part and remitting the case to the High Court.
HELD : (1) There was no telling material other than speculation or weak suggestion that there was corrupt participation on the part of the officers.
The material link to make out invalidation of the election on account of corrupt practice under section 123(7) was missing because it had not been made out in the evidence that there was collusion between the second respondent and the appellant.
[201A] 2.
(a) The expression 'last date for making nominations ' must mean the last hour of the last date during which presentation of nomination papers is permitted under section 33 of the 1951 Act.
In short section 23(3) of the 1950 Act and section 33(1), (4) and (5) of the 1951 Act interact, fertilise and operate as a duplex of clauses.
So viewed the inclusion of the names in the electoral roll after 3 p.m. on April 17, 1974 is illegitimate and illegal.
[204F] The sixteen names brought into the electoral register subsequent to 3 p.m. of April 17, 1974 must be excluded from the reckoning to determine the returned candidate.
[205E] 194 Baidyanath ; and Ramji Prasad Singh ; referred to.
(b)The prohibition contained in section 23(3) of the 1950 Act is based on public policy and serves a public purpose.
Any violation of such a mandatory provision conceived to pre empt scrambles to thrust into the rolls, after the appointed time, fancied voters by anxious candidates or parties spells invalidity and there can be no doubt that if, in flagrant violation of section 23(3), names have been included in the electoral roll, (he bonus of such illegitimate votes shall not accrue, since the vice of viodance must attach to such names.
[202F] (c)In our electoral scheme as unfolded in the 1951 Act every elector ordinarily can be a candidate.
Therefore, his name must be included in the list on or before the date fixed for nomination.
Otherwise he loses his valuable right to run for the elective office.
It is thus vital that the electoral registration officer should bring in the names of all the electors into the electoral roll before the date and hour fixed for presenting the nomination paper.
[202G H] (d)Section 33(1) specifies that the nomination paper shall be presented "between the hours of 11 o 'clock in the forenoon and 3 o 'clock in the afternoon".
That means that the duration of the day for presentation of nomination papers terminates at 3 o 'clock in the afternoon.
If an elector is to be able to file his nomination paper, his name must be on the electoral roll at 3 p.m. on the last day for filing nominations.
So the temporal terminus ad quem is also the day for finalisation of the electoral register and by the same token, that day terminates at just that hour when the returning officer shuts the door.
[204C] (e)The inference that could be drawn from section 33(4) is that there must be a completed electoral roll when the time for filing the nomination paper expires.
Therefore, the final electoral roll must be with, the returning officer when the last minute for delivering the nomination paper ticks off.
Subsequent additions to the electoral register will inject confusion and uncertainty about the constituents or electors, introduce a disability for such subsequently included electors to be candidates for the election.
[203D] (f)The cumulative effect of the various strands of reasoning and the rigour of the language of s.23(3) of the 1950 Act leaves no doubt that inclusion of the names in the electoral roll of a constituency after the last date for making nominations for an election in that constituency, must be visited with fatality.
[203E] [The case had been sent to the High Court for scrutinising the 16 ballots for the limited purpose of discovering for whom, bow many of the invalid sixteen had been cast.]
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<s>[INST] Summarize the judgementN: Criminal Appeal No. 611 of 1982.
From the Judgment and order dated the 5th November, 1982 of the Allahabad High Court in Criminal Contempt Case No. 144/81.
N.N. Sharma, Mrs. Pankaj Verma & Mrs. Vijay Gupta for the Appellant.
Dalveer Bhandari for the Respondent.
The Judgment of the Court was delivered by 835 THAKKAR, J.
We are sorry to say we cannot subscribe to the 'slap say sorry and forget ' school of thought in administration of contempt jurisprudence, Saying 'sorry ' does not make the slapper poorer.
Nor does the cheek which has taken the slap smart less upon the said hypocritical word being uttered through the very lips which not long ago slandered a judicial officer without the slightest compunction.
An Advocate whose client had been convicted by the learned Special Judge, Dehradun, was required to appear before the learned Judge to make his submissions on the question of 'sentence ' to be imposed on the accused upon his being found guilty of an offence under Section 5(2) of the Prevention of Corruption Act by the Court The learned Advocate appeared in a shirt and trouser outfit in disregard of the rule requiring him to appear only in Court attire when appearing in his professional capacity, The learned Judge asked him to appear in the prescribed formal attire for being heard in his professional capacity.
The learned Advocate apparently took umbrage and left the Court.
Some other Advocate appeared on behalf of accused who had been found guilty of a charge of corruption.
The learned Judge imposed a sentence of 4 years ' R.I. which may have been considered to be on the high side.
The matter in that case could have been carried to the High Court by way of an appeal, both, on the question of conviction as also, on the question of sentence.
But so far as the Court of the Special Judge was concerned, as the judgment had been pronounced and nothing more remained to be done by that Court, the matter should have rested there.
The appellant, a senior Advocate of long standing (not an immature inexperienced junior), however made a written application to the learned Special Judge couched in scurrilous.
language making the imputation that the Judge was a "corrupt Judge" and adding that he was " contaminating the seat of justice".
A threat was also held out that a complaint was being lodged to higher authorities that he was corrupt and did not deserve to be retained in service.
The offending portion may better be quoted: "I am making a complaint against you to the highest authorities in the country, that you are corrupt and do not deserve to be retained in service.
The earlier people like you are bundled out the better for us all.
As for quantum of sentence, I will never bow down before you.
You may award the maximum sentence.
Any 836 way, you should feel ashamed of yourself that you are contaminating the seat of justice " There is no known provision for making such an application after a matter is disposed of by a Judge.
Nor was any legal purpose to be served by making such an application.
Obviously application was made to terrorize and harass the Judge for imposing a sentence which perhaps be considered to be on the high side whether or not it was really so was for the higher Court to decide.
As pointed out earlier, it was however not permissible to adopt a course of intimidation in order to frighten the Judge.
His malicious purpose in making the application is established by another tell tale circumstance by forwarding copy of this application, without any occasion or need for it, to several authorities and dignitaries.
Administrative Judge, Allahabad for favour of requisitioning case file S.T. No. 2 from Dehradun and scanning through the fasts.
Chief Secretary, Uttar Pradesh Government Lucknow.
Director, Vigilance Commission, U.P., Lucknow.
Prime Minister, Secretariat, Delhi.
State Counsel, Shri Pooran Singh, Court of Shri V.K. Agarwal, Dehradun.
Shri D. Vira, I.C.S., Chairman, Indian Police Commission, Delhi.
President, Bar Association, Dehradun 8.
The Hon 'ble Chief Justice of Bharat.
The High Court of Allahabad initiated contempt proceedings, found the appellant guilty of having committed criminal contempt under Section 2(c)(1) of the , after affording him full opportunity of hearing and imposed a sentence of S.I for 1 week and a fine of Rs. 500/ (in default to undergo a further term of S.I. for 1 week).
Hence this appeal.
Before the High Court the appellant sought to justify his conduct on the ground of the treatment alleged to have been meted 837 out to him by the learned Judge.
No remorse was felt.
No sorrow was expressed.
No apology was offered.
Only when the appellant approached this Court he expressed his sorrow before this Court saying that he had lost his mental balance.
Upon finding that this Court was reluctant to hear him even on the question of sentence, as he had not even tendered his apology to the learned Judge who was scandalized, he prayed for three weeks ' time to give him an opportunity to do so.
His request was granted.
He appeared before the learned Judge and tendered a written apology wherein he stated that he was doing so "as directed by the Hon 'ble Supreme Court.
" This circumstance in a way shows that it was a 'paper ' apology and the expression of sorrow came from his pen, not from his heart.
For, it is one thing to "say" sorry it is another to "feel" sorry.
It is in this context that we have been obliged to make the opening remarks at the commencement of this judgment.
We do not think that merely because the appellant has tendered his apology we should set aside the sentence and allow him to go unpunished.
Otherwise, all that a person wanting to intimidate a Judge by making the grossest imputations against him has to do, is to go ahead and scandalize him, and later on tender a formal empty apology which costs him practically nothing.
If such an apology were to be accepted, as a rule, and not as an exception, it would in virtually be tantamount to issuing a 'licence ' to scandalize courts and commit contempt of court with impunity.
It will be rather difficult to persuade members of the Bar, who care for their self respect, to join the judiciary if they are expected to pay such a price for it.
And no sitting Judge will feel free to decide any matter as per the dictates of his conscience on account of the fear of being scandalized and persecuted by an Advocate who does not mind making reckless allegations if the Judge goes against his wishes.
If this situation were to be countenanced, advocates who can cow down the Judges, make them fall in line with their wishes, by threats of character assassination and persecution, will be preferred by the litigants to the advocates who are mindful of professional ethics and believe in maintaining the decorum of Courts.
No Judge can take a decision which does not displease one side or the other.
By the very nature of his work he has to decide matters against one or other of the parties.
If the fact that he 838 renders a decision which is resented to by a litigant or his lawyer were to expose him to such risk, it will sound the death knell of the institution line has therefore to be drawn somewhere, some day, by some one.
That is why the Court is impelled to act (rather than merely sermonize), much as the Court dislikes imposing punishment whilst exercising the contempt jurisdiction, which no doubt has to be exercised very sparingly and with circumspection.
We do not think that we can adopt an attitude of unmerited leniency at the cost of principle and at the expense of the Judge who has been scandalized.
We are fully aware that it is not very difficult to show magnanimity when some one else is the victim rather than when oneself is the victim.
To pursue a populist line of showing indulgence is not very difficult in fact it is more difficult to resist the temptation to do so rather than to adhere to the nail studded path of duty.
Institutional perspective demands that considerations of populism are not allowed to obstruct the path of duty.
We, therefore, cannot take a lenient or indulgent view of this matter.
the day must be dreaded when a Judge cannot work with independence by reason of the fear that a disgruntled member of the Bar can publicly humiliate him and heap disgrace on him with impunity, if any of his orders, or the decision rendered by him, displeases any of the Advocates appearing in the matter.
We firmly believe that considerations regarding maintenance of the independence of the judiciary and the morale of the Judges demand that we do not allow the appellant to escape with impunity on the mere tendering of an apology which in any case does not wipe out the mischief.
We are of the opinion that the High Court was therefore justified in imposing a substantive sentence.
And the sentence imposed cannot be said to be excessive or out of proportion.
Appeal is accordingly dismissed.
N.V.K. Appeal dismissed.
[/INST]The appellant Institution was started as a Teachers Training College under a Society which was established as far back as 1972, though the college itself was established and started in July 1977.
On 22.9.1977 the institution made an application to the Government for grant of affiliation or recognition of the same in response to which a most extraordinary order was passed by the Government directing the University for refusing affiliation on the strange ground that all proposals for affiliation by the non Government Teachers Training Colleges be rejected and that no student be allowed to appear as a private candidate.
How ever, since the above decision was not applicable to minority institutions which was reiterated by a latter ordinance called Bihar non Government Teachers Training College ordinance on June 5, 1978, it was incumbent on the institution to prove that it was a minority institution before it could be granted affiliation, on 24.2.1978 the appellants filed an application before the Ranchi University for grant of affiliation on June 15, 1978, the Government wrote to the Ranchi University for inspection of the appellants college.
On 6.2.1980.
Joint Secretary to the Government of Bihar sent letter to the Ranchi University and the Deputy Commissioner, Ranchi for inspection of the appellants ' college.
Although the institution applied for affiliation in 1978 and claimed to be a minority institution which was never disputed at any point of time the Government took three years to take a decision about affiliation of the appellants ' college.
On 5.3.1980, the University Authorities inspected the appellants ' college and recommended its affiliation which was followed by a report by the District Development officer, Ranchi on 30.6.1980 recommending affiliation.
But, despite these facts no final decision was taken by the Government as a result of which the appellants had to move the High Court for directing the Government to grant affiliation.
On the High Court 's direction to the Government to decide recognition and affiliation 411 the appellants ' college within a specified time, on 3.11.1980, the Government granted recognition and approval for affiliation for three sessions only, i.e. 1977 78, 1978 79 and 1979 80.
On 10.11.1980, the University wrote to the Government recommending further grant of affiliation to the appellants ' college.
On 22.11.1980 the appellants applied for grant of permanent affiliation.
But, somehow or the other, on 27.11.1980 for undisclosed reasons, the Government passed a strange order cancelling the recognition and approval for affiliation granted to the appellants ' college vide its letter dated 3.11.1980.
This order was challenged before the High Court which quashed the same on 18.5.1981.
Thereafter, on 17.8.1981 the State of Bihar filled a Special Leave Petition before the Supreme Court which was dismissed on 30.11.1981.
However.
on 7.9.1981.
three minority colleges, alongwith the appellants ' college, were granted recognition and affiliation by the Government by virtue of the High Court 's orders.
The appellants again wrote to the High Court to direct the State Government to dispose of the application of the appellants for permanent recognition filed by them on 22.11.1980.
On 16.9.1982.
the Education Commissioner, Bihar again made a recommendation This recommendation was made after inspection by the Educational Commissioner In the presence of the local authorities as also the University authorities and after coming to a conclusion that the institution was a minority institution.
Despite this, since no action was taken by the Government the appellants were compelled to file another Writ Petition in the High Court on 3.5.1983 with a prayer to allow the students of the appellants ' college to appear at the University Examination, but the Writ Petition was dismissed by the High Court in limine.
Hence, the appeal by Special Leave of this Court Allowing the appeal, the Court ^ HELD: (Per majority) Per Fazal Ali.
J 1.1.
Although Article 30 of the Constitution is not included in Part III of the Indian Constitution which guarantees certain fundamental rights, yet the Supreme Court starting from the Kerala Education Bill s case, which is the locus classicus on the point in issue, right up to the case of The Ahmedabad St. Xaviers College Society & Anr.
vs State of Gujarat and Anr.
and ending with All Saints High School, Hydrabad & Ors.
vs Government of Andhra Pradesh & Ors. has clearly recognised that running of minority institutions is also as fundamental and important as the rights conferred on the other citizens of the country, with the only difference that the rights contained in Article 30 have as independent sphere of their own The freedoms guaranteed by Article 30 are also elevated to the status of a full fledged fundamental right within the field in which they operate.
In other words, any State action which in any way destroys, curbs or interferes with such rights would be violative of Article 30.
[414 G H; 415 A B] 1.2.
Technically speaking, the right of affiliation or aid from the Government is not a fundamental right so as to violate Article 30, but the refusal to give aid or affiliation by the statutory authorities without just and sufficient grounds amounts to violation of the fundamental freedoms enshrined in Articles 30 of the Constitution.
If the Government withholds giving aid or a University 412 refuses to grant affiliation, the direct consequence would be to destroy the very existence of the institution itself because there may be a number of minority institutions which may not exist without the Government aid and a large number of students admitted to these institutions, in the absence of affiliation, will be deprived of acquiring higher academic status which will not only be a loss to the institution but a loss to the nation itself.
It is for this purpose that Article 30 was inserted in the Constitution.
[415 G H; 416 A] Kerala Education Bill 's Case [1959] SCR 995; The Ahmedabad St Xaviers College Society & Anr.
vs State of Gujarat & Anr.
; ; and All Saints High School.
Hyderabad & Ors.
vs Government of Andhra Pradesh & Ors.
referred to.
On a careful and detailed review of these cases the following position emerges: (1) that while article 30 undoubtedly seeks to preserve the religious freedom, autonomy and its individuality; there is no fundamental right under which an institution can claim either aid or affiliation as a matter of right.
It is permissible for the State of the University, as the case may be, to lay down reasonable conditions to maintain the excellence of standard of education but in the garb of doing so, refusal to grant affiliation cannot be made a ruse or pretext for destroying the individuality and personality of the said institution.
If this is done, then apart from being wholly arbitrary and unreasonable it would amount to a clear infraction of the provisions of article 30 because what cannot be done directly is done indirectly.
[420 C E] (2) While the State or a University has got an absolute right to insist on certain courses of study to be followed by institutions before they could be considered for affiliation but these conditions should not in any way take away the freedom of management or administration of the institution so as to reduce it to a satellite of the University or the State.
This is impermissible because such a course of action directly violate article 30 of the Constitution.
[420 F G] (3) While imposing conditions before granting affiliation, as indicated above, the State or the University cannot kill or annihilate the individuality or personality of the institution in question by insisting on following a particular kind of syllabus or a course of study which may be directly opposed to the aims, objects and ideals sought to be achieved by the institutions.
[420 H] (4) There is a very thin line of distinction between withholding of affiliation for a particular purpose on extraneous grounds so as to subject the institution to rigorous orders, edicts or resolutions which may run counter to the dominant purpose for which the institution has been founded, and insisting on genuine and reasonable conditions to be imposed in the larger interest of education.
[421 A B] While affiliation itself may not be a fundamental right but refusal of affiliation on terms and conditions or situations which practically denies the progress and autonomy of the institution is impermissible as being violative of article 30 of the Constitution.
[421 C] 413 2:1.
In the instant case, the State has refused to grant affiliation on purely illusory grounds which do not exist and failed to consider the recommendation of the Education Commissioner which was made after full inspection for grant of affiliation.
In other words, the affiliation was refused without giving any sufficient reasons and such a refusal contravenes the provisions of article 30 of the Constitution.
[426 G] 2:2.
The belated attempt through a subsequent affidavit filed by the State Government to show that there were certain defects in the Institution, in view of the non production of the most important and decisive material, is nothing but an after thought.
The State Government 's assurance to grant affiliation to the appellants college on fulfilling certain conditions is nothing but a pretext or a smoke screen to cloud the real issue.
The Government did not mean business by producing a report on which exhibit J was based, which has been deliberately suppressed despite the Court 's order to produce the same.
Therefore, an adverse inference has to be drawn against the State Government to the effect that if the materials on which the report was based had been produced it would have exploded the case of the Government and disclosed the real state of affairs namely that the appellants institute does fulfil all the conditions imposed by the State.
[425 G H; 426 A] 3.
Normally the Supreme Court does not grant cost in case of refusal of affiliation to institutions but having regard to the manner in which the State Government has behaved and exhibited its reluctance to perform a constitutional duty and has also tried to disobey the Court 's order for production of certain documents the instant case is a fit case for imposing a heavy cost on the State, apart from the directions to the State for granting affiliation to the appellant 's college and to allow its students of the 1980 81, 1981 82 and 1982 83 sessions to sit in the examination.
[426 F G] Per Sabyasachi Mukharji, J. (Concurring) In the background of the facts and circumstances of this case, the Government action is not granting affiliation to the appellants college is action based without reason and is an act of arbitrariness.
[428 F] (Per contra) 1.
Article 30 of the Constitution was engrafted for the high and noble purpose of safeguarding and protecting the rights of minorities to establish and administer educational institutions.
In this case, in not granting affiliation to the appellants ' college there was no discrimination against any educational institution on the ground that it was under the management of any minority whether based on religion or language.
It was inaction or an act of arbitrariness on the part of the authorities.
From such unreasonable and arbitrary actions or inactions institutions, educational or otherwise, belonging both to the majority or minority communities often suffer and in appropriate cases, Court should grant relief without aid or recourse to the articles of the Constitution protecting the freedom and rights of the minorities.
In this case there is no evidence or even any serious allegation that affiliation was being denied to the appellants institution on the ground that it was a minority institution.
[428 G H; 429 A B] 414
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<s>[INST] Summarize the judgementCivil Appeal No. 398 of 1960.
Appeal by special leave from the judgment and decree dated June 23, 1959, of the Calcutta High Court in Appeal from Original Decree No. 50 of 1955.
Veda Vyasa, section K. Kapur and B.P. Maheshwari, for the appellant.
K. L. Gosain and K. L. Mehta, for the respondent.
December 20.
The Judgment of the Court was delivered by 219 SHAH, J.
Mr.
Justice Bachawat of the High Court of Judicature at Calcutta decreed Suit No. 1039 of 1948 filed by one Pearey Lal hereinafter called the plaintiff for a decree for Rs. 1,35,000/ with interest against the New Bank of India Ltd. The appeal of the Bank against the decree was dismissed by a Division Bench of the High Court.
With special leave the Bank has appealed to this Court.
The Bank had its registered office, originally at Lahore but after the partition of India the office was transferred to Amritsar.
The plaintiff who was a resident of Lahore had accounts with several banks including the New Bank of India Ltd. In view of the impending partition, the plaintiff was anxious to transfer his moveable property outside the territory it was apprehended would be included in Pakistan, and he gave instructions for transferring his accounts with the Bank to its other branches in India.
He also paid an amount of Rs. 1,25,000/ on July 18, 1947, into the Bank at Lahore with instructions to transmit the same the to Bank branch at Calcutta which it then proposed to open in the near future.
An amount of Rs. 10,000/ was also paid into the Bank at Lahore on July 19, 1947, with similar instructions.
In respect of these two transactions the Bank executed receipts which are set out below: "Received the sum of Rs. 1,25,000/ (Rs. One Lac & twenty five thousand) only from Mr. Pearey Lal on account of amount to be remitted to Calcutta branch for preparing various F.D. Receipts subject to his instructions on or after the opening date when he would call upon them personally.
Lahore for the New Bank of India Ltd. The 18th day of Sd.
Illegible July, 1947.
Manager.
" 220 . . . . . . . . . . . . . . . . . "Received the sum of Rs. 10,000/ (Rupees ten thousand) only through Mr. Pearey Lal for transmission to our Calcutta Office for making up various F. D. Receipts at his instance when he calls upon them personally on or after the opening date of the Branch.
Lahore for the New Bank of India Ltd. 19 7 47.
Illegible Manager.
" The two amounts were transmitted by the Bank to Calcutta.
A branch of the Bank was opened at Calcutta on September 24, 1947, but within a few days thereafter the Bank ceased making payments.
It appears that a moratorium for a limited period was declared under an Ordinance issued by the Governer General restraining the Bank from making payments to its depositors.
In December, 1947, after the expiry of the period of the moratorium the plaintiff applied to the Bank 's branch at Calcutta for facility to withdraw the whole amount but the Calcutta Branch raised certain technical objections against such a course.
On March 24, 1948 the plaintiff commenced an action against the Bank inter alia for a decree of Rs. 1,35,000/ in the Calcutta High Court on its original side.
During the pendency of the suit the High Court of East Punjab sanctioned a scheme for arrangement under sections 153 and 153A of the Indian Companies Act, 1913, for settlement of the liability of the Bank.
By the first clause of the scheme the expression "deposit" was to include "Fixed Deposits, Bank 's own Cash Certificates, Current Accounts, Deposits at Call, Savings Fund Accounts Amounts lying in Sundries or in any other kind of Credit Accounts, Bank Drafts, Cash Orders, and documents of the like nature and amounts due to Bankers over and above the value of Government Securities lying with them against 221 such depositors".
It was directed by the scheme, as it finally emerged, that the depositors were to be paid 701/2% of the deposits held by them and to he allotted shares of the face value of 5% of the deposits.
The plaintiff claimed by his suit that he had entrusted to the Bank at its registered office at Lahore Rs. 1,35,000/ on July 18 and 19, 1947, with instructions to transmit the same to the branch of the Bank which it proposed to open at Calcutta and to hold the amount subject to further instructions to be given by him when he would call personally at the branch at Calcutta on or after the opening date, that prior to the opening of the said Calcutta Branch the plaintiff countermanded his instructions on or about September 13, 1947 and demanded at Lahore that it be returned, but the Bank wrongfully claimed to have remitted the two sums to its Calcutta Branch and to have kept the same in a fixed deposit account in the name of the plaintiff, even though the plaintiff, had opened no such account at the Calcutta Branch and had given no instructions to put the same into any account by way of fixed deposit or otherwise.
The plaintiff, accordingly, claimed that the Bank was a trustee for transmission of the amount and in the absence of any instructions given by him for opening a fixed deposit account, in respect of the amount transmitted the Bank stood qua the plaintiff in a fiduciary relation and was liable to refund the full amount.
In substance, it was claimed by the plaintiff that the amount lying with the Bank at Calcutta was not a deposit within the meaning of the scheme and was not liable to any reduction.
The Bank submitted that the amount of Rs. 1,35,000/ was deposited by the plaintiff at its head office at Lahore for the purpose of opening a fixed deposit account in the name of the plaintiff upon the terms that the fixed deposit would carry 222 interest as on the respective dates of the deposits, that it was agreed that the plaintiff would be allowed to take loans upto 90% of the deposit at a rate of interest of half percent above the current fixed deposit rates and that the amount would be transmitted to the Calcutta Branch of the Bank for the purpose of crediting the same to the fixed deposit account of the plaintiff.
The Bank denied the alleged instructions in September, 1947, countermanding the original arrangement and contended that the plaintiff was bound by the scheme of arrangement sanctioned by the High Court of East Punjab.
The Bank offered to pay the amount due to the plaintiff under the scheme of arrangement and also to allot shares of the value of 5% in accordance with the scheme.
A decree on admission was passed against the Bank for Rs. 81,000/ and the suit was contested by the Bank for the balance of the claim.
The trial Court held that even though the plaintiff failed to prove the instructions in the month of September, 1947, set up by him countermanding transmission, it was established on the evidence, that the plaintiff had entrusted to the Bank Rs. 1,35,000/ for transmission and the plaintiff having given no further instructions, the Bank held the amount as trustee for the plaintiff and that the plaintiff 's claim was not liable to be reduced under the scheme sanctioned by the High Court of East Punjab.
The Court also negatived the plea of the Bank that the amount of Rs. 1,35,000/ was deposited with the Bank at Lahore for opening a fixed deposit account subject to the conditions which the Bank set up.
The finding of the trial Court were confirmed, in appeal, by a Division Bench of the High Court at Calcutta.
The facts found proved, according to the findings of the trial Court and confirmed by the 223 High Court are therefore that the plaintiff delivered an amount of Rs. 1,25,000/ on July 19, 1947, and Rs. 10,000/ on July 19, 1947, to the Bank at Lahore for transmission to Calcutta, with instructions to await the directions of the plaintiff regarding the opening of accounts for keeping the same in fixed deposit or otherwise in the Calcutta Branch of the Bank, and the plaintiff never gave instructions for opening any account, fixed deposit or otherwise, in regard to the amounts after they reached Calcutta.
Delivery of the amount for transmission to the Bank created ex facie a relationship of a fiduciary character.
But counsel for the Bank contends that when the amount was handed over at Lahore to the Bank by the plaintiff who was an old constituent of the Bank it must be presumed that a relationship of debtor and creditor arose and by the addition of instructions for transmissions of the amount to another branch the relationship of trustee and cestuique trust did not arise.
He submitted that the contention that the relation between the plaintiff and the Bank was of creditor and debtor was supported by three important circumstances: (1) that the Bank agreed to pay interest on the amount delivered by the plaintiff; (2) that the Bank charged no commission or remuneration for transmission of the amount and (3) that even on the plaintiff 's case the amount was to be utilized for opening fixed deposit accounts at Calcutta.
It is true that in the absence of other evidence a person paying money into a Bank, whether he is a constituent of the Bank or not, may be presumed to have paid the money to be held as bankers ordinarily hold the moneys of their constituents.
If no specific instructions are given at the time of payment or thereafter, and even if the money is held in a suspense account the bank does not thereby become a trustee for the amount paid.
In other words, when a person dealing with 224 a bank delivers money to the Bank an intention to create a relation of creditor and debtor between him and the Bank is presumed, it being the normal course of the business of the Bank to accept deposits from its customers.
But this presumption is one of fact arising from the nature of the business carried on by the Bank and is rebutted by proof of special instructions, or circumstances attending the transaction.
Where the money is paid to a bank with special instructions to retain the same pending further instructions (The Official Assignee, Madras vs Natesam Pillai (1)) or to pay over the same to another person who has no banking account with the bank and the bank accepts the instructions and holds the money pending instructions from that other person (Arbuthnot & Co. vs D. Rajam Ayyar (2)), or where instructions are given by a customer to his banker that a part of the amount lying in his account be forwarded to another bank to meet a bill to become due and payable by him and the amount is sent by the banker as directed (Farley vs Turner (3)), a trust results and the presumption which ordinarily arises by reason of payment of the money to the bank is rebutted.
It is not necessary in this appeal to consider whether because of an agreement to pay interest the relationship may be deemed to be of debtor and creditor, because it was held by both the courts below that no such agreement is proved, and according to the settled practice of this court the finding is regarded a binding.
The Bank charged no commission or remuneration for transmitting the amount to Calcutta, but that, in our judgment, is a circumstance which permits of no inference against the plaintiff.
Undoubtedly, when the amount was delivered to the Bank by the plaintiff it was his intention to open fixed deposit account in Calcutta with the 225 Bank 's branch but the fixed deposit accounts were to be opened after instructions were received.
The transaction, as evidenced by the two receipts, was primarily one of entrustment of the amount to the Bank for transmission to Calcutta.
After the purpose for which the moneys were entrusted was carried out, in the absence of further instructions the defendant did not cease to be a trustee.
So long as instructions were not given by the plaintiff for appropriation of the amounts the Bank continued to hold the amounts transmitted for and on behalf of the plaintiff and there is no evidence that the plaintiff gave instructions or acquiesced in the opening of a fixed deposit account after the same reached Calcutta.
It is immaterial that the Bank purported to open fixed deposit account in the name of the plaintiff with the amounts received at its head office at Lahore.
That course of action was adopted without the consent of the plaintiff and it could not bind the plaintiff.
The High Court was, therefore, right in holding that the amount delivered by the plaintiff to the Bank at Lahore remained in trust even after it reached Calcutta, and it was not held by the Bank, in deposit for the plaintiff within the meaning of the scheme sanctioned by the High Court of East Punjab.
In that view of the case the appeal fails and is dismissed with costs.
Appeal dismissed.
[/INST]The appellants were holders of pre settlement minor inams.
The grants were not of whole villages but of certain lands and they comprised both the melwaram and kudiwaram rights in the lands.
The definition of 'estate ' in the Orissa Estates Abolition Act, 1951, did not include a minor inam.
But by the Orissa Estates Abolition (Amendment) Act, 1954, the definition was enlarged to cover minor inams also.
Both the Acts had received the assent of the President.
The appe llants contended (i) that the Amendment Act of 1954 was not a law for the compulsory acquisition of property for a public purpose and was not saved by article 31 A of the Constitution and (ii) that the minor inams were outside the scope of the Abolition Act and could not be resumed.
Held, that the Amendment Act of 1954 was valid and was within the Protection of article 31A.
In assenting to this Act, the President assented to new categories of properties being brought within the operation of the abolition Act of 1951, and he, in fact, assented to the law for the compulsory acquisition for public purpose of these new categories of property.
Though the minor inams were not of whole villages and included both the warams, they were nevertheless inams" and the Constitution defined an "estate" as including "any" inam and fell within the scope of Abolition Act of 1951 as amended in 1954.
The ejusdem generis rule cannot be applied to Inam in the definition of "estate" in article 31A(2)(a) because particular categories like "jagir, in am or muafi", are included in the definition expressly even though the rule may apply to "other similar grants" which expression may take its colour from the categories named.
The ejusdem generis rule is applicable where a wide or general term has to be cut down with reference to the genus of the particular terms which precede the general words, 251
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<s>[INST] Summarize the judgementCivil Appeal No. 1178 of 1988.
From the Judgment and Order dated 5.11.1986 of the Delhi High Court in F.A.O. (OS) No. 231 of 1986.
Hardev Singh and Miss Madhu Moolchandani for the Appellant.
S.B. Saharya, V.B. Saharya and Ratna Nair for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
Special Leave granted.
353 The Delhi Development Authority vide its letter dated 5th October, 1976 accepted the tender of the appellant for construction of 240 Janta Houses at the estimated cost of Rs.24,49,262.
The work was to commence on 15th October, 1976 and was required to be completed by 14th July, 1977.
By a subsequent extension of time the work was finally completed on 2nd April, 1980 and the houses so constructed have been allotted to several people.
Between February 1983 to December 1985 the appellant sent several letters to the respondent requesting them to finalise the bills.
It appears, however, that the first of such letters was written on 28th February, 1983.
Thereafter the appellant wrote several letters and finally on 4th September, 1985 to the respondent to finalise the bills and ultimately served the notice through his counsel requesting it to release the security of Rs.1 lakh and refer the dispute to arbitration.
The respondent failed to do so.
In January, 1986 the appellant filed an application under section 20 of the (hereinafter called 'the Act ') seeking a direction from the Court that the respondent be directed to file the arbitration agreement in the Court and the dispute be referred to the arbitration.
The learned Single Judge of the High Court of Delhi dismissed the application as barred by time.
There was an appeal to the Division Bench of the High Court of Delhi.
The Division Bench upheld the decision of the learned Single Judge.
Hence this appeal to this Court.
The question is, whether the High Court was right in upholding that the application under section 20 of the Act was barred by limitation.
In view of the decision of this Court in Kerala State Electricity Board, Trivandrum vs T.P.K.K. Amsom and Bensom, Kerala, ; , it is now well settled that Article 137 of the would apply to any petition or application filed in a Civil Court.
Sub section (1) of section 20 of the Act provides as follows: "Application to file in Court arbitration agreement: Where any persons have entered into an arbitration agreement before the institution of any suit with respect to the subject matter of the agreement or any part of it, and where a difference has arisen to which the agreement applies, they or any of them, instead of proceeding under Chapter II, may apply to a court having jurisdiction in the matter to which the agreement relates, that the agreement be filed in Court.
" Therefore, in order to be entitled to order of reference under 354 section 20, it is necessary that there should be an arbitration agreement and secondly, difference must arise to which this agreement applied.
In this case,there is no dispute that there was an arbitration agreement.
There has been an assertion of claim by the appellant and silence as well as refusal in respect of the same by respondent.
Therefore, a dispute has arisen regarding non payment of the alleged dues of the appellant.
The question is for the present case when did such dispute arise.
The High Court proceeded on the basis that the work was completed in 1980 and, therefore, the appellant became entitled to the payment from that date and the cause of action under article 137 arose from that date.
But in order to be entitled to ask for a reference under section 20 of the Act there must not only be an entitlement to money but there must be a difference or dispute must arise.
It is true that on completion of the work a right to get payment would normally arise but where the final bills as in this case have not been prepared as appears from the record and when the assertion of the claim was made on 28th February, 1983 and there was non payment, the cause of action arose from that date, that is to say, 28th of February, 1983.
It is also true that a party cannot postpone the accrual of cause of action by writing reminders or sending reminders but where the bill had not been finally prepared, the claim made by a claimant is the accrual of the cause of action.
A dispute arises where there is a claim and a denial and repudiation of the claim.
The existence of dispute is essential for appointment of an arbitrator under section 8 or a reference under section 20 of the Act.
See Law of Arbitration by R.S. Bachawat, 1st Edition, page 354.
There should be dispute and there can only be a dispute when a claim is asserted by one party and denied by the other on whatever grounds.
Mere failure or inaction to pay does not lead to the inference of the existence of dispute.
Dispute entails a positive element and assertion in denying, not merely inaction to accede to a claim or a request.
Whether in a particular case a dispute has arisen or not has to be found out from the facts and circumstances of the case.
The application under section 20 of the Act was filed in Court in January, 1986, that is to say, within the period of three years; therefore the application was within time.
The High Court was in error in dismissing the application on the ground of limitation.
The judgment and order of the High Court are, therefore, set aside.
The High Court is directed to make an order under section 20 of the Act and give consequential directions in respect of the same.
The costs of this appeal would be costs in the arbitration proceeding.
The appeal is thus allowed and disposed of as aforesaid.
N.P.V. Appeal allowed.
[/INST]The Government by an order dated March 9,1979 revised the fee scales of certain categories of Staff Artists in Doordarshan with retrospective effect from January 1, 1973 on the analogy of the recommendations of the Third Pay Commission made in respect of regular Government servants but the categories of the petitioners were denied the benefit by giving them junior scales.
In these writ petitions they assailed the said order as discriminatory and violative of articles 14 and 16(1) of the constitution.
Their case is that the nature of work performed by them is similar to that performed by their counterparts in the Film Division and the qualifications required For appointment to these categories of Staff Artists are also the same as required in the cases of their counterparts in the Film Division.
They, therefore, claimed that they should be declared Government servants and given the same pay scales as given to their respective counterparts in the Film Division of the same .Ministry of lnformation and Broadcasting with effect from the respective dates of their appointments.
The petitioners ' claim was contested by the respondents by contending that the Staff Artists of Doordarshan were not Government servants but were engaged on contract basis, that they were not of the same class as the employees of the Film Division and that they were therefore not entitled to the same scales of pay.
PG NO 604 PG NO 605 Allowing the writ petitions, HELD: 1.
The Staff Artists of Doordarshan including the petitioners are Government servants.
They possess all the criteria of a Government servant.
They are holding civil posts under the Government.
They are being appointed up to the age of 55 6O years on a time scale like a regular Government servant.
Their contract runs till the age of retirement as in regular government service.
608E, B, 606F] Union oflndia vs M.A. Chowdhary, AIR 1987 SC l526, applied.
2.1 The petitioners perform the same duties as those performed by their counterparts in the Film Division, under the same Ministry of Information and Broadcasting.
When two posts under two different wings of the same Ministry are not only identical, but also involve the performance of the same nature of duties, it would be unreasonable and unjust to discriminate between them in the matter of pay.
[609D] 2.2 One of the Directive Principles of State Policy as embodied in clause (d) of article 39 of the Constitution is equal pay for equal work for both men and women.
The Directive Principles contained in Part IV of the Constitution though not enforceable by any court, are intended to be implemented by the State of its own accord so as to promote the welfare of the people.
Article 37 provides, inter alia, that it shall be the duty of the State to apply these principles in making law.
[609E F] 2.3 The principle of "equal pay for equal work", if not given effect to in the case of one set of Government servants holding same or similar posts, possessing same qualifications and doing the same kind of work as another set of Government servants it would be discriminatory and violative of articles 14 and 16 of the Constitution.[609G] Such discrimination has been made in respect of the petitioners.
They are, therefore, entitled to same scales of pay as their counterparts in the Film Division.[609H 6l0A] [The petitioners to be given the new scales of pay with effect from the first day of the month of the year in which each writ petition was filed, except the petitioners in writ Petition Civil No. 1756 of 1986 who are to be given such scales of pay With effect from December 1,1983.
They would also be entitled to the substituted scales of pay and consequential benefits.
The respondents to disburse to the petitioners the arrear amounts being the difference in the pay scales within four months.][610B C,E F] PG NO 606
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<s>[INST] Summarize the judgementAppeal No. 358 of 1958.
645 Appeal by special leave from the judgment and order dated 8th March, 1956, of the former Bombay High Court in I.T.R. No. 55 of 1955.
A. N. Kripal and D. Gupta, for the appellant.
N. A. Palkhivala and B. P. Maheshwari, for the respondents.
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 in Income tax Reference No. 55 of 1955, in which two questions of law were stated for opinion and both were answered in favour of the assessee and against the Commissioner of Income tax who is the appellant before us and the assessee is the respondent.
The facts of this case are these: The respondent is a registered firm carrying on business as commission agents in Bombay.
For purposes of its business it borrowed money from time to time from Banks on joint promissory notes executed by it and by others with joint and several liability.
On September 26, 1949, the respondent borrowed Rs. 1,00,000 from the Bank of India on a pronote executed jointly with one Kishorilal.
Out of this amount a sum of Rs. 50,000 was taken by the respondent for purposes of its business and the rest by Kishorilal.
Kishorilal however failed to meet his liability and became a bankrupt.
The respondent had therefore to pay the Bank the whole amount, i.e., Rs. 1,00,000 with interest.
Out of the amount taken by Kishorilal the respondent received in the accounting year, from the Official Assignee, a sum of Rs. 18,805 and claimed the balance, i.e., Rs. 31,740 as deduction.
The accounting year was from August 26, 1949 to July 17, 1950, the assessment year being 1951 52.
This claim was disallowed both by the Income tax Officer as well as the Appellate Assistant Commissioner.
On Appeal to the Income tax Appellate Tribunal this sum was allowed ,as an allowable deduction under section 10(2)(xv) of the Income tax Act and as business loss.
82 646 At the instance of the Commissioner a case was stated to the High Court of Bombay by the Income tax Appellate Tribunal.
In the statement of the case which was agreed to by both parties the Tribunal said: "For the purpose of his business, he borrows from time to time money on joint and several liability from banks.
The Commercial practice is to borrow money from banks on joint and several liability.
An illustration will explain what we mean.
A and B require Rs. 50,000 each.
They find that the Bank would not advance Rs. 50,000 to each on his individual security.
They however, find that the Bank would be prepared to advance Rupees one lach on their joint and several liability.
They take Rupees one lac on joint and several liability and then divide the money equally between themselves.
" It also found that the Banks advanced monies to some constituents on their personal security also but they had to pay a higher rate of interest than when the money was borrowed on joint and several responsibility; that Rs. 1,00,000 borrowed from the Bank was in accordance with the commercial practice of Bombay.
On these facts the following two questions of law were referred to the High Court: "(1) Whether the assessee 's claim is sustainable under section 10(2)(xv) of the Act? (2) Whether the assessee 's claim that the loss was a business loss and, therefore, allowable as a deduction in computing the profits of the assessee 's business is sustainable under law?" Both these questions were answered in favour of the respondent and against the appellant.
Counsel for the Commissioner challenged the findings of the Tribunal in regard to the existence of commercial practice in Bombay but this ground of attack is not available to him because not only did the Tribunal give this finding in its Order, but in the agreed statement of the case also this finding was repeated as is shown by the passage quoted above.
The High Court also has proceeded on the basis of this commercial practice.
In the judgment under appeal the learned Chief Justice said: 647 "The finding of the Tribunal is clear and explicit that what the assessee was doing was not something out of the ordinary, but in borrowing this money on joint and several liability he was following a practice which was established as a commercial practice.
Therefore, the transaction was clearly in the course of the business and incidental to the business and it is this transaction which resulted in a loss to the assesses, he having to pay the liability of the surety.
" Therefore this appeal has to be decided on the basis that a commercial practice of financing business by borrowing money on joint and several liability was established.
It was argued on behalf of the appellant that this court in Madan Gopal Bagla vs Commissioner of Income Tax, West Bengal (1) had decided against the allowability of such losses.
But the facts of that case when carefully scrutinised are distinguishable and the decision does not support the contentions of the appellant.
No doubt certain features of that case and the present one are similar but they differ in essential features.
In that case the assessee was a timber merchant who obtained a loan of Rs. 1 lac from the Bank of India on the joint security of himself and one Mamraj, which the assessee paid off.
Mamraj also obtained a loan of Rs.
I lac on the joint security of himself and the assessee.
Mamraj became an insolvent and the assessee had to pay the whole of the amount borrowed with interest thereon.
The assessee there received a certain amount of money by way of dividends from the Receiver and the balance he wrote off as bad debt in the assessment year and claimed it as an allowable deduction under section 10.
The High Court there held that the debt could not be said to be a debt in respect of the business of the assessee as he was not carrying on the business of standing surety for other persons nor was he a money lender, he being simply a timber merchant; that it had not been established nor was it alleged that he was in the habit of standing surety for other persons "along with them for purposes of securing loans for their use and benefit" and even if money (1) ; 648 had been so borrowed and there had been a loss the loss would have been a capital loss and not a business loss to the assessee.
This statement of the law was approved by this Court but there mutuality, as an essential ingredient of the custom established, was found to be lacking as is shown by the following passage from the judgment of the court.
"The custom stated before the Appellate Assistant Commissioner was that persons carrying on business in Bombay used to borrow monies on joint security from the Banks in order to facilitate getting financial assistance from the Banks and that too at lower rates of interest.
A businessman could procure financial assistance from the Banks on his own, but he would in that case have to pay a higher rate of interest.
He would have to pay a lower rate of interest if he could procure as surety another business man, who would be approved by the Bank.
This, however, did not mean that mutual accommodation by businessmen was necessarily an ingredient part of that custom.
A could procure B, C or D to join him as surety in order to achieve this objective, but it did not necessarily follow that if A wanted to procure B, C or D to thus join him as surety he could only do so if he in his own turn joined B, C or D as surety in the loans which B, C or D procured in their turns from the Banks for financing their respective businesses.
Unless that factor was established, the mere procurement by A of B, C or D as surety would not be sufficient to establish the custom sought to be relied upon by the appellant so as to make the transaction of his having joined Mumraj Rambhagat as surety in the loan procured by Mumraj Rambhagat from Imperial Bank of India, a transaction in the course of carrying on his own timber business and to make the loss in the transaction a trading loss or a bad debt of the timber business of the appellant.
" Continuing at page 558 it was observed: "There were thus elements of mutuality and the essential ingredient in the carrying on of the money lending business, which were elements of the custom 649 proved in that case, both of which are wanting in the present case before us." Mr. Palkhivala for the respondent rightly argued that Madan Gopal Bagla 's case (1) was decided against the assessee because the custom of persons standing surety for each other for borrowing money and the element of mutuality which was an essential ingredient in the case of Commissioner of Income Tax, Madras vs section A. section Ramaswamy Chettiar (2) was not proved.
In the latter case it was established that there was a well recognised custom amongst Chettiars of raising funds for their business of money lenders by the execution of joint pronotes and that if a loss was sustained by one of the executants having to pay the whole on account of inability of the other it was a deductible loss.
The appellant also relied on a judgment of the Madras High Court in Commissioner of Income Tax vs section R. Subramanya Pillai (3).
In that case the assessee was a book seller who from time to time jointly with another person borrowed money out of which he employed a portion in his business.
One of such amounts borrowed was Rs. 16,200 out of which the assessee took Rs. 10,450 for his business needs and the other debtor took the balance.
The latter became insolvent and the assessee had to pay the whole of the money borrowed and claimed it as allowable deduction under section 10(2)(xi) or section 10(2)(xv) of the Act or as business loss and it was hold that he was not entitled, because the loss sustained by the assessee was too remote from the business of book selling carried on by him and was not sufficiently connected with the trade and therefore fell outside the range of those amounts which could properly be brought into profit and loss account of the business.
The decision in Commissioner of Income Tax vs section A. section Ramaswamy Chettiar (2) was there distinguished on the ground that the decision must be confined to its own peculiar facts and did not apply to business as the one in Subramanya Pillai 's Case (3).
The following passage from (1) ; , (2) (3) 650 the judgment of Viswanatha Sastri, J., in that case is relevant: "But there the business was one of money lending and the Court found that according to the wellknown and well recognised mercantile custom of Nattukottai bankers, they were in the habit of raising 'funds which formed the stock in trade of their money lending business by the execution of joint promissory notes in favour of bankers.
That was apparently the usual technique of obtaining credit adopted by the Nattukottai Chetti community money lenders.
In the context this Court held that where a Nattukottai Chetti money lender paid off in their entirety the debts jointly due by him and another as a result of the latter 's inability to pay, the loss sustained as a result of this transaction was a loss of the moneylending business itself and therefore a deductible item in computing profits.
" In the instant case it has been found that there was a well recognised commercial practice in Bombay of carrying on business by borrowing money from Banks on joint and several liability.
It was also found that by so doing the borrower could borrow money at a lower rate of interest than he otherwise would have paid; that the respondent had, in accordance with the commercial practice, borrowed the money, the whole of which he had to return because the joint promisor Kishori Lal had become bankrupt; mutuality was also held proved.
It cannot be said that the essential feature of the case now before us is in principle different from that of the Commissioner of Income tax vs Ramaswamy Chettiar (1).
In both cases the finding is that there is mutuality and custom of borrowing money on joint pronotes for the carrying on of business.
In our opinion in the circumstances proved in the present case, and on the facts established and on the findings given, the respondent was rightly held to be entitled to deduct the loss which was suffered by him in the transaction in dispute.
Counsel for the assessee drew our attention to a (1) 651 Privy Council judgment Montreal Coke and Manufacturing Co. vs Minister of National Revenue (1) but that, case can have no application to the facts of the present case because it was found there as a fact that the assessees 's financial arrangements were quite distinct from the activities by which they earned their income and expenditure incurred in relation to the financing ' of their business was not expenditure in the earning of their income within the statute.
It was then contended that the loss of the respondent was a 0capital loss and for this again reliance was placed on the judgment of this Court in Madan Gopal Bagla 's case (2 ) and particularly on the observation at page 559 where Bhagwati, J., quoted with approval the observations of the High Court in the judgment but as we have pointed out the facts of that case are distinguishable and what was said there has no application to the facts and circumstances proved in the present case.
In our view the judgment of the High Court is right and we therefore dismiss this appeal with costs.
Appeal dismissed.
[/INST]For the purposes of its business the respondent borrowed a certain sum of money from the Bank of India on a pronote executed jointly by him and one Kishorilal in accordance with a commercial practice of carrying on business by borrowing money from Banks on joint and several liability.
The money was divided half and half between the respondent and Kishorilal but Kishorilal failed to pay off his liability as he became a bankrupt and the respondent had to pay the whole amount to the Bank.
The respondent, however, received from the Official Assignee a part of the sum taken by the Kishorilal leaving a balance still unpaid.
The respondent 's claim to deduct this unpaid balance under section 10(2)(XV) of the Income tax Act was refused by the Income tax Officer and the Appellate Assistant Commissioner but was allowed by the Income tax Appellate Tribunal on appeal.
On a reference made at the instance of the appellant the High Court decided the question in favour of the respondent assessee.
On appeal by the appellant by special leave, Held, that the view taken by the High Court was correct.
On the finding that there was a well establised Commercial practice of financing business by borrowing money on joint and several liability and by so doing the respondent could borrow at a lower rate of interest, and that there was mutuality between the borrowers for standing surety for each other for loans taken for business purposes, the respondent assessee in computing his business profits was entitled to deduct the loss suffered by him in paying the sum not paid by his co borrower.
Commissioner of Income tax vs Ramaswami Chettiar, , applied.
Madan Gopal Bagla vs Commissioner of Income tax, West Bengal, ; , Commissioner or Income tax vs section R. Subramanya Pillai, distinguished.
Montreal Coke and Manufacturing Co. vs Minister of National Revenue, [1945] 13 I.T.R. Supp. 1, not applicable.
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<s>[INST] Summarize the judgementN: Criminal Appeal No. 201 of 1971 Appeal by Special Leave from the Judgment and order dated the 10th March 1971 of the Punjab and Haryana High Court at Chandigarh in Criminal Appeal No. 1165 of 1969.
D. Mookerjee and R. L. Kohli for the appellant.
H. section Marwah and R. N. Sachthey for respondent.
The Judgment of the Court was delivered by GOSWAMI, J.
This appeal by special leave is directed against the judgment of the High Court of Punjab and Haryana affirming the conviction of the appellant under section 165A, Indian Penal Code.
The facts briefly are that the appellant, Bhagwan Singh, is a C.I.D. police constable and would be naturally familiar with Head Constable, Jagat Singh (P.W. 1).
Jagat Singh had detected a case under section 411, I.P.C., on April 25, 1968.
In that case one 922 Rameshwar Dass of Ambala City was arrested by Jagat Singh at Murthal Bus Stand after searching his person and recovering from him 20 gold coins and 47 gold bangles weighing 101 tolas.
Rameshwar Dass was produced in court on April 27, 1968 and was remanded to judicial custody till April 29.
In order to help Rameshwar Dass, Om Parkash and Sulekh Chand, who were co accused with the appellant (since acquitted) apparently took the help of the appellant to approach Jagat Singh to save Rameshwar Dass from the criminal case.
The appellant suggested to Jagat Singh to substitute the seized gold coins by 20 other gold coins which he would be supplied with and if he would do that he would be paid Rs. 1000/ for this help in the criminal case.
When this was proposed to Jagat Singh, the other two accused were with him.
At first Jagat Singh refused to accede to this unusual request but later on asked him to see him at Dogra Hotel the same day at 5.30 P.M.
While Jagat Singh gave that hope to the appellant and the two co accused, the former also immediately approached the Deputy Superintendent of Police, Gurbhaksh Singh (P.W. 6) and informed him about this matter.
The D.S.P. recorded his statement which is marked as Ext.
The D.S.P. sent for the Station House Officer of the Police Station, Sonepat, and directed him to go to the Dogra Hotel and arrange for the detection of the crime.
Jagat Singh was also directed to go to the Hotel and meet the appellant and others as previously suggested by him.
The D.S.P. along with the Sub Inspector, Ram Singh (P.W. 4), waited in a shop near the Dogra Hotel and after the appellant had passed the money to Jagat Singh a signal, as arranged, was given on which the raiding party rushed to the Hotel and found Jagat Singh and the appellant sitting on a table facing each other.
At that time currency notes of the value of Rs. 1000/ were in the hands of Jagat Singh and these were taken possession of by the police and on search of the appellant 20 gold coins having hook marks were recovered from his pocket.
The above story of the prosecution was sought to be established by the evidence of P.W. 1, Jagat Singh, P.W. 2, Ajit Singh, P.W. 4, Ram Singh, S.H.O., and P.W. 6, D.S.P., Gurbhaksh Singh.
One of the witnesses of the raiding party was given up as being won over by the appellant.
Nathuram (P.W. 3), proprietor of the Hotel, also did not fully support the prosecution case and was declared hostile by the prosecutor.
The Special Judge, Rohtak, convicted the appellant and sentenced him to undergo rigorous imprisonment for one year and acquitted the other two co accused, as stated earlier.
The High Court on appeal maintained the conviction and sentence.
Hence this appeal by special leave.
We have heard the learned counsel for the appellant and are unable to find any infirmity in the conviction.
It is clear that the two co accused being interested in Rameshwar Dass took the help of the appellant to influence Jagat Singh for substitution of the stolen exhibits 923 in order that the case under section 411 IPC against Rameshwar Dass would absolutely fail.
Jagat Singh was definitely approached by the appellant in view of his belonging to the same force and he attempted to bribe Jagat Singh by paying Rs. 1000/ which must have been supplied by the two co accused interested in Rameshwar Dass to ruin the prosecution case.
Once the stolen gold coins were substituted, the identity would be lost and the accused would be entitled to acquittal and even the accused in that event might be able to claim the gold coins.
The appellant thus attempted to bribe Jagat Singh in order to show favour to Rameshwar Dass by accepting the bribe.
In this case the Public Prosecutor obtained permission from the court to cross examine P.W. Jagat Singh since he did not specifically refer to the two co accused in his examination in chief.
Mr. Debabrata Mukherjee, on behalf of the appellant, submits that since the prosecution case rests principally upon Jagat Singh 's testimony, the whole edifice is destroyed on that witness being declared hostile and the appellant is entitled to an acquittal.
We have carefully perused the evidence of Jagat Singh, who was examined in the trial after more than a year of detection of the case.
The prosecution could have even avoided requesting for permission to cross examine the witness under section 154 of the Evidence Act.
But the fact that the court gave permission to the Prosecutor to cross examine his own witness, thus characterising him as, what is described as a hostile witness, does not completely efface his evidence.
The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence.
We are satisfied in this case that the evidence of Jagat Singh, but for whose prompt assistance the case would not have seen the light of day and whose statement had immediately been recorded by the D.S.P., is amply corroborated by other evidence mentioned above to inspire confidence in his testimony.
Apart from that the fact of recovery of the gold coins in the pocket of the appellant gave a seal of finality to the truth of the charge against the appellant.
If Jagat Singh had accepted the bribe he would have been guilty under section 161 I.P.C. There is, therefore, clear abetment by the appellant of the offence under section 161 I.P.C. and the ingredients of section 165A I.P.C. are established against him.
There is thus no merit in this appeal and the same is dismissed.
S.R. Appeal dismissed.
[/INST]Section 10(26)(a), Income tax Act, 1961 provides that a person is entitled to exemption from income tax if (1) he is a member of a Scheduled Tribe as defined in article 366(25) of the Constitution, (2) he is residing in any area specified in Part A or Part of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution, or the State or Union Territories mentioned in section 10(26)(a).
and (3) the income in respect of which exemption is claimed is income which accrues or arises to him from any source in the area, State or Union Territories mentioned in the section.
The assessee belonged to the Jaintia Scheduled Tribe and was a permanent resident of the United Khasi Jaintia Hills Autonomous District referred to in para 20 of the Sixth Schedule to the Constitution.
He was employed in the Secretariat of the Assam Government, and his place of work was within the Shillong Municipality, and was not a part of the area described in para 20 of the Sixth Schedule to the Constitution.
The Income tax officer held that .
the income of the assessee from his salary arose in the non scheduled area and was not covered by the tax exemption provided under section 10(26) (a).
In a writ petition under article 226 the assessee challenged the validity of 8. 10(26) (a) on the ground that the classification of members of Scheduled Tribes into those having income from a source within the specified areas and those having income from the source outside the areas was arbitrary.
The High Court struck it down as violative of article 14 on the ground that the exemption clause which was enacted for the benefit of the Scheduled Tribes would be frustrated if the income of such person was made subject to tax merely because the source of that income was outside that area.
Allowing the appeals of the Department, ^ HELD: The High Court was in error in holding that the classification contemplated by section 10(26)(a), Income Tax Act, 1961, was artificial and was not based on any intelligible differentia.
[422D] 1 (a) .
A taxation law, like any other law.
has to pass the equality test of article 14, but given the legislative competence, the legislature has ample freedom to select and classify persons, incomes and objects which it would or would not tax.
The mere fact that a tax falls more heavily on some in the same category, is not by itself a ground to render the law invalid.
It is only when, within the range of its selection.
the law operates unequally and cannot be justified on the basis of a valid classification, that there would be a violation of article 14.
[420B D] " East India Tobacco Co. vs State of Andhra Pradesh, [1963] I S.C.R. 404; Vivan Joseph Ferriera vs Municipal Council of Greater Bombay, ; and Jaipur Hosiery Mills vs State of Rajasthan, , followed.
(b) Classification for the purpose of taxation or for exempting from tax with reference to the source of the income is integral to the fundamental scheme of the Income Tax Act.
The classification made by sub cl.
(a) for the purpose of exemption is not unreal or unknown but conforms to a well recognised pattern and is based on intelligible differentia.
The object of this differentiation between income accruing or received from a source in the specified areas and 12 522SCI/76 414 the income accruing or received from a source outside such areas IS to benefit not only the members of the Scheduled Tribes residing in the specified areas but also to benefit such areas economically.
[420F; 421E F] (c) If it is held that a member of the Scheduled Tribe residing in a specified area was entitled to the exemption irrespective of whether the source of his income lay within or outside such area, it may lead to mischievous results.
A non Tribal assessee in India may enter into a sham partnership with a member of the Scheduled Tribe residing in the specified area and ostensibly give him a substantial share of the profits of the business but really give him only a nominal amount and thus evade tax.
Also a tribal residing in the scheduled areas.
earning large profits from business located outside the specified areas would be totally exempt while a non tribal whose source of income is a share in the same business would be taxed and thus the exemption is likely to operate unequally between individuals similarly situated.
[421G H] (2) The decision in section K. Datta.
Income Tax officer and or$. vs Lawrence Singh Ingty; , , on which the High Court had relied is no authority for the proposition that the exemption granted under section 10(26) to the members of the Scheduled Tribes residing in the specified area, as a class, could not be validly subjected to the condition contained in sub cl.
(a) of that provision.
The sentence that "the exemption in question was not given to individuals either on the basis of their social status or economic resources.
it was given to a class" occurring in that case could not be torn out of the contest and used for spelling out a proposition different from what was actually decided in that case.
[419H; F] (3) The State is the best judge to formulate its policies and to decide how far and for what period and in what situations, the members of a particular Scheduled Tribe residing in a particular Tribal area should be afforded ` the protection and benefit in the matter of promotion of their educational and economic interests embodied in article 46 of the Constitution.
[422C]
</s>
|
<s>[INST] Summarize the judgementns Nos. 133, 156 & 157, 159 171, 178, 184, 206 210 and 234 of 1966.
Writ Petitions under article 32 of the Constitution of India for enforcement of fundamental rights.
section T. Desai, K. M. Desai, and Ravinder Narain, for the petitioners (in all the petitions).
M. C. Setalvad, Purshottam Trikamdas, Vithal Bhai B. Patel and L N. Shroff, for respondents Nos. 1 and 2 (in W.P. No. 133 of 1966.
Purshottam Trikamdas Vithalbhai B. Patel and L N. Shroff, correspondents Nos. 1 and 2 (in W. Ps.
156 and 206 of 1966).
Vithalbhai B. Patel and I.N. Shroff, for respondents 1 Nos. 1 and 2 (in W.P. Nos. 157, 159 171, 178, 184, 207 210 and 234 of 1966.
B. Sen and R. H. Dhebar, for respondent No. 3 (in all the petitions).
The Judgment of the Court was delivered by Mitter, J.
This is a group of Writ Petitions under article 32 of the Constitution challenging the validity of the assessment book relating to special Property section prepared and published by the Municipal Corporation of the City of Ahmedabad by which the 681 Municipality seeks to impose or has imposed property tax on properties described as Special Properties like textile mills, factories, buildings of the universities, etc.
on the basis of a flat rate per 100 sq.
ft. of the floor area of the property situate within the municipal limits of the city.
In Writ Petitions Nos. 133, 156 157, 159 171, 178, 184 and 234 of 1966, the challenge relates to the validity of the assessment book relating to the year 1966 67; in Writ Petitions No. 206 and 210 of 1966 the challenge relates to the years 1964 65 and 1965 66 while in W.P. Nos. 207, 208 and 209 of 1966 the challenge relates only to the year 1965 66.
The difference lies in this So, far as the assessments for the year 1966 67 are concerned, there has been no authentication of the assessment book after the disposal of all complaints relating to the entries made in the book, while the challenge relating to the years 1964 65 and 1965 66 is made at a stage after such authentication and in respect of which attachments of property belonging to the assessees have already been levied.
In W. P. No. 234 of 1966 filed in October 1966, the issue of a distress warrant and the levy of attachment are also challenged.
Several textile mills in the city of Ahmedabad are before this Court in these petitions and they have a common complaint against the assessments.
To appreciate the points raised in these petitions, it is necessary to take a bird 's eye view of the relevant provisions of the Bombay Provincial Municipal Corporations Act (LIX of 1949) under which the assessments were purported to be made.
Section 127(1) of the Act makes it obligatory on the Corporation of the City of Ahmedabad to impose, among other taxes, a property tax.
Sub section
(3) of the section provides that municipal taxes shall be assessed and levied in accordance with the provisions of the Act and the rules and sub section
(4) lays down that nothing in this section shall authorise the imposition of any tax which the State Legislature has no power to impose in the State under the Constitution; (it is needless to add that the Act has been amended after the Constitution came into force).
Section 128 empowers the Corporation to recover the tax by the processes laid down in the section in the manner prescribed by rules.
These are inter alia (1) by presenting a bill; (2) by serving a written notice of demand; (3) by distraint and sale of the defaulter 's movable property; and (4) by the attachment and sale of a defaulter 's immovable property.
Section 129 lays down that for the purposes of sub section
(1) of section 127 property taxes shall comprise the taxes mentioned which shall, subject to the exceptions, limitations and conditions provided, be levied on buildings and lands in the city.
One of these mentioned in cl.
(c) is a general tax of not less than 12 per cent of their rateable value which may be levied, if the Corporation so determines, on a graduated scale.
A building has been defined in section 2 sub section
(5) and land in section 2 sub section
'Land ' under this definition includes land which is being built upon or is built upon or covered 682 with water, benefits to arise out of land, things attached to the earth or permanently fastened to anything attached to the earth and rights created by legislative enactment over any street.
Under section 2 (49) 'property tax ' means a tax on buildings and lands in the city.
Section 2(53) defines 'rack rent ' as the amount of the annual rent for which the premises with reference to which the term is used might reasonably be expected to let from year to year as ascertained for the purpose of fixing the rateable value of such premises and under section 2(54) 'rateable value ' means the value of any building or land fixed in accordance with the provisions of the Act and the rules for the purpose of assessment to property taxes.
Under section 453 the rules in the Schedule as amended from time to time shall be deemed to be part of the Act.
The relevant taxation rules are to be found in Chapter VIII of the rules.
Rule 7(1) provides that "In order to fix the rateable value of any building or land assessable to a property tax there shall be deducted from the amount of the annual rent for which such land or building might reasonably be expected to let from year to year a sum equal to ten per cent of the said annual rent, and the said deduction shall be in lieu of all allowances for repairs or on any other account whatever." Under r. 7(2) all plant and machinery contained ' or situate in or upon any building or land and belonging to any of the classes specified from time to time by public notice by the Commissioner, with the approval of the Corporation, shall be deemed to form part of such building or land for the purpose of fixing the rateable value thereof under sub r.
(1) but, save as aforesaid, no account shall be taken of the value of any plant or machinery contained or situated in or upon any such building or land.
Rule 7(3) runs: "A statement setting out clearly the classes of plant and machinery specified from time to time by the Commissioner under sub rule (2) and describing in detail what plant and machinery falls within each such class shall be prepared by the Commissioner under the directions of the Standing Committee and shall be open to inspection at all reasonable hours by members of the public at the chief municipal office." Rule 9 provides inter alia: "The Commissioner shall keep a book, to be called "the assessment book", in which shall be entered every official year (a) a list of all buildings and lands in the city.
distinguishing each either by name or number as he shall think fit, and containing such particulars regarding the location or nature of each as will, in his opinion, be sufficient for identification; 683 (b) the rateable value of each such building and land determined in accordance with the provisions of this Act and the rules; (c) the name of the person primarily liable for the payment of the property taxes, if any, leviable on each such building or land; (d) if any such building or land is not liable to be assessed to the general tax, the reason of such non liability; (e) when the rates of the property taxes to be levied for the year have been daily fixed by the Corporation and the period fixed by public notice, as hereinafter provided, or the receipt of complaints against the amount of rateable value entered in any portion of the assessment book has expired, and in the case of any such entry which is complained against, when such complaint has been disposed of in accordance with the provisions hereinafter contained, the amount at which each building or land entered in such portion of the assessment book is assessed to each of the property taxes, if any, leviable thereon; Rule 10 provides for preparation of ward.
assessment books for each of the wards into which the city is for the time being divided for the purpose of election and the ward assessment books and their respective parts shall collectively constitute the assessment book.
Under r. 13(1) when the entries required by cls.
(a), (b), (c) and (d) of rule 9 have been completed, as far as practicable, in any ward assessment book, the Commissioner shall give public notice thereof and of the place where the ward assessment book or a copy of it may be inspected.
Under r. 15(i) the Commissioner must, at the time and in the manner prescribed in r. 13, give public notice of a day, not being less than 15 days from the publication of such notice, on or before which complaints against the amount of any rateable value entered in the ward assessment book will be received in hit office.
Rule 16 provides for the time and manner of filing complaints against valuation.
Rule 17 lays down that the Commissioner must give notice to each complainant of the time and place when his complaint will be investigated.
Rule 18 prescribes for the investigation and disposal of the complaint in the presence of the complainant by the Commissioner.
Under r. 19(1) when all such complaints, if any, have been disposed of and the entries required by cl.
(e) of r. 9 have been completed in the ward assessment book the said book shall be authenticated by the Commissioner who shall 684 certify under his signature that except in the cases, if any, in which amendments have been made as shown therein, no valid objection had been made to the rateable value entered in the said book.
Under sub r.
(2) of the said rule, the ward assessment book shall thereupon, subject to such alterations as may be made under the provisions of r. 20, be accepted as conclusive evidence of the amount of each property tax leviable on each building and land in the ward in the official year to which the book relates.
Rule 21(1) lays down that it shall not be necessary to prepare a new assessment book every official year and that subject to the provisions of sub r.
(2) the Commissioner may adopt the entries in the last preceding year 's book with such alterations as he thinks fit, as the entries for each new year.
Under sub r.
(2) a new assessment book has to be pre pared at least once in every four years.
The writ petition of which the papers were placed in detail before the Court is No. 133 of 1966 preferred by the New Manek Chowk Spinning and Weaving Mills Ltd. The respondents are: (1) the Municipal Corporation of the City of Ahmedabad, (2) the Deputy Municipal Commissioner of the same city and (3) the State of Gujarat.
The challenge in this case relates to the validity of the assessment book for the year 1966 67.
The complaint is that respondent No. 1 by the said book imposed property tax on the petitioner on the basis of a flat rate per 100 sq.
ft. of the floor area of the petitioners ' property as also of all other textile mills, factories, university buildings etc.
under r. 9 of the Taxation Rules.
Annexure 'A ' to the petition gives a synopsis of the entries relating to the year of assessment 1966 67.
It is divided into three parts, the first being headed 'buildings ', the second 'additional land ' and the third 'machinery '.
So far as 'buildings ' are concerned, there are three columns, the first being the area of the building in square feet, the second monthly rental per 100 sq.
and the third the annual rental.
The building is again divided into two classes, one for processing and the other non processing.
The monthly rental for the processing part of the building is taken at Rs. 6 10 0 per 100 sq.
while that for the non processing portion is Rs. 5 4 0 per 100 sq.
With regard to the additional land, the valuation is on the basis of the market rate per sq.
ft. of land and as regards machinery the valuation is taken to be effective value of which the annual rental at 71 % is taken as the annual value.
The petitioner 's complaint is that while under the provisions of the Act and the rules made thereunder it was clear that the rateable value of the property must be arrived at after determining the rack rent or the annual rental value in respect of each premises which is to be computed on the basis of the annual rent for which the property might reasonably be expected to let from year to year, the municipal corporation of Ahmedabad had adopted the method of determining the annual rent on a flat rate method according to the floor area, 685 irrespective of the locality, quality, age and nature of the property which was not a recognised method and was not permissible in law.
According to the petition, a formula on the flat rate method of a fixed amount per 100 sq.
for arriving at the rental was not only against the express provisions of the Act but was also against the recognised concepts of valuation in the Law of Rating.
The method adopted by respondent No. 1 in this case was arbitrary and repugnant to the petitioner 's right guaranteed under article 14 of ' the Constitution.
It was said that the buildings of the textile mills.
were situate in different localities some of which were in the heart of the city and some on its outskirts.
There was no uniformity in the floor area of the mills concerned nor was the age of the buildings in all cases the same.
It was further complained that buildings in respect of the properties covered by the special property section included textile mills taxed on the fixed rate method whereas.
buildings other than those of textile mills were taxed on the basis of annual rent for which such premises were reasonably expected to let from year to year.
A further complaint was made that respondent No. 1 had assessed the property tax apart from buildings and lands on the plant and machinery of the petitioner.
It was submitted that the imposition of property tax on plant and machinery was beyond the legislative competence of the State.
Sub r.
(3) of r. 7 was challenged as giving the Commissioner arbitrary and unguided power to set out the classes of plant and machinery and to describe what plant and machinery fell within each such class.
for the purpose of assessment of property tax.
Moreover, such classification by the Commissioner was made final and binding and no right was given to any person affected thereby to object to the same nor was any right of appeal against such decision of the Commissioner provided.
A complaint was also made that respondent No. 1 had not prepared any ward assessment books for the year 1966 67.
It is the petitioner 's case that the figures in the assessment book for the year 1966 67 were adopted from those of the previous year 1965 66, under r. 21 of the Taxation Rules.
It was submitted that such adoption was invalid and improper inasmuch as the assessment books for the previous years were bad in law.
The assessment books for the previous years were also bad in law inasmuch as the same were authenticated under r. 19 by the Deputy Municipal Commissioner and not by the Commissioner as contemplated in the said rule.
The complaints were not considered by the Municipal Commissioner him self.
It was said that the action of the Deputy Municipal Commissioner under a purported delegation of power by order dated November 20, 1964 was invalid as a quasi judicial function could not be delegated.
In this connection, reference was.
made to section 49(i) of the Act.
It was further contended that even in the year 1966 67 the power of conducting proceedings under rr.13,.
15, 16, 17, 18 and 19 of the Taxation Rules had been deputed by the Municipal Commissioner in favour of the Deputy Municipal 686 Commissioner and as such deputation was bad in law.
Finally, the petition proceeded on the basis that the imposition of property tax on the flat rate method on textile mills as under the special property section was ultra vires the Act and the rules made therein and was violative of the fundamental rights of the petitioner guaranteed under articles 14, 31(i) and 19 of the Constitution and the procedure adopted in preparing the assessment book was ultra wires the procedure laid down by the Act and the rules.
The grounds of challenge are formulated in paragraph 35 of the petition.
Among the prayers are a writ of mandamus or any similar writ directing respondent No. 1 to forbear from taking any steps for the imposition and realisation of the property tax pursuant to the preparation of the assessment book for the year 1966 67 relating to the Special Property section; a writ of certiorari or other similar writ to quash the assessment book for the said year; a writ of prohibition or other order restraining respondent No. 2, the Deputy Municipal Commissioner from acting under deputation under section 49 (1) and.
other reliefs.
The points raised in the counter affidavit are as follows: (1) The tax being based on the amount of rent for which the property is or may be let from year to year, such rent has got to be ascertained from either the actual or the hypothetical rent for which the property along with all the equipment like plant and machinery and amenities that it contains, is or may be let and such annual rent where the property is let as a factory equipped as a factory would be the rent that it would fetch as a factory and not as a bare building.
(2) Rule 7(2) only gives power to the Corporation to include such plant and machinery as it may determine from time to time taking into consideration various factors like the situation of the city, its facilities for transport to other parts of the State and the country, whether the industry is well established or is just being developed etc.
(3) Although under r. 9(b) the amount of the rateable value of the property in the previous year is to be entered, it is open to the Corporation to take any fresh circumstances into consideration before adopting the entry from the earlier year.
Entry in col.
(b) is neither the imposition of the tax nor the final amount on the basis whereof the tax is leviable.
It is in the nature of a proposal by the Corporation and is subject to objection by the assessee and the tax becomes leviable after the objections have been disposed of and the amount is entered in column (e).
(4) After the tax has become leviable under the Rules, the assessee is entitled, if he so desires, to file an appeal under section 406 against either the rateable value or the tax fixed or charged under the Act.
The Court of Small Causes can hear and determine the appeal.
Under section 4 10 there is a provision for a reference to the District Court and section 411 provides for an appeal to it.
The High Court would have the power of revision of the order of the District Judge.
(5) The fixing of the rateable value on 687 floor area basis is in accordance with the accepted principles and methods in the Law of Rating.
In various cities it is common to let out premises on the basis of the floor area.
The computation of rateable value by this means depends on the estimate of the annual, rent at which the property may be reasonably expected to let from year to year.
The situation of the building, The age of the building, the material used for the building are not relevant for, if the mill containing all plant and machinery and other equipment is let, it is let as a factory for carrying on a business of manufacture of textiles.
The grievance of the petitioner is open to redress under section 406 and the other sections mentioned.
(6) It is not incumbent on respondent No. 1 to maintain any ward assessment books, and (7) under section 49(1) the power to dispose of complaints against the fixing of rateable value was duty deputed to the Deputy Commissioner and there was nothing illegal about it.
The points formulated by Mr. section T. Desai are as follows: (1) The method of adopting a flat rate for a floor area for determining the annual value adopted by the Municipal Corporation of Ahmedabad was against the express provisions of the Act.
(2) The method was also in violation of all recognised concepts and principles of valuation for the purpose of rating.
(3) The imposition of tax on a flat rate method was violative of article 14 of the Constitution.
(4) Rule 7(2) and r. 7(3) were ultra vires the Constitution as beyond the legislative competence and entry 49 of List 11.
(5) The delegation of powers of the Commissioner to the Deputy Commissioner was.
bad as it involved the delegation of quasi judicial power, and (6) Rule 7(3) suffered from excessive delegation and was violative of ' article 14 of the Constitution.
The first, second and third points may be taken together.
In the forefront of his argument Mr. Desai relied on a decision of this Court in The Lokmanya Mills vs The Barsi Borough Municipality.(1) There the common question in the appeals related to the validity of r. 2C framed under the Bombay Municipal Boroughs Act, 1925.
Under section 73 of the Act the Municipality was entitled to levy a rate on lands and buildings.
In 1947 new rules were made after obtaining the approval of the Government of Bombay for the purpose of enhancing the assessment of lands and buildings within the area of the Municipality.
Rule 2C of the new rules provided that: "As regards Mills, factories and buildings relating thereto, the annual letting value shall be fixed at Rs. 40/per 100 square feet or part thereof for every floor, ground floor or cellar and the tax shall be assessed on the said annual letting value, at the ordinary rate.
(1) ; 688 The Municipality prepared an assessment list under the new scheme of taxation in respect of factories and buildings relating thereto and issued notices of demand calling upon the appellants to pay house tax and water tax so assessed.
The question before this ,Court was whether rule 2C was ultra vires.
This Court examined the provisions of the Act under which the rate could be levied on lands and buildings ' assessed on the valuation thereof based on annual letting value.
It was said: "If the rate is to be levied on the basis of capital value, the building to be taxed must be valued according to some recognised method of valuation: if the rate is to be levied on the basis of the annual letting value, the building must be valued at the annual rental which a hypothetical tenant may pay in respect of the building.
The Municipality ignored both the methods of valuation and adopted a method not sanctioned by the Act.
By prescribing valuation computed on the area of the factory building, the Municipality not only fixed arbitrarily the annual letting value which bore no relation to the rental which a tenant may reasonably pay, but rendered the statutory right of the tax payer to challenge the valuation illusory.
An assessment list prepared under section 78, before it is authenticated and finalised, must be published and the taxpayers must be given an opportunity to object to the valuation.
By the assessment list in which the valuation is not based upon the capital value of the building or the rental which the building may fetch, but on the floor area, the objection which the tax payers may raise is in substance restricted to the area and not to the valuation.
" It was further observed that if the Municipality had adopted any of the recognised methods of valuation for assessing the annual letting value, the tax would not be open to challenge.
The Court further noted: "In any event, there is no evidence on the record of this case that the factories and "buildings relating thereto" such as warehouses, godowns and shops of the Mills situate in the compound of the mills, may be separately let at the uniform rate prescribed by the Municipality.
The vice of the rule lies in an assumed uniformity of return per square foot which structures of different classes which are in their nature not similar, may reasonably fetch if let out to tenants and in the virtual deprivation to the rate payer of his statutory right to object to the valuation.
" It may be interesting to note that an Act was passed to validate the said imposition.
On a Writ Petition No. 1476 of 1966 the Bombay High Court held the Validating Act to be ultra vires.
The 689 contention put forward before the Bombay High Court was inter alia that the levy of a tax on buildings and lands on the basis of floor area was necessarily arbitrary and capricious in that the valuation of buildings and lands so arrived at could have no relation to their actual value, for the value of buildings depended, among other things, upon location, age, mode of construction, material used etc.
A uniform rate on buildings and lands of widely differing values was clearly discriminatory because of lack of classification leading to inequality.
It was further argued that there was violation of article 14 in that the owners of mills and factories were discriminated against as compared to the owners of other buildings and lands.
These grounds were upheld by the Bombay High Court.
Reference was made by Mr. Desai to decisions of other High Courts wherein similar observations were made.
In Bhuvanes wariah vs State(1), the Mysore Buildings Tax Act, 1963 and Schedule 11 thereto were challenged before the High Court of Mysore.
It was pointed out that under the scheme of the Act a cow shed and an ultra modern cinema house in the best locality would be charged with the same amount of tax if the extent of floorage of both were the same.
The High Court held that the Act suffered from lack of rational classification because: "The floorage basis is not only unscientific, it is something arbitrary and mechanical.
It does not conform to any of the known principles of taxation.
In the very nature of things, under that basis the incidence of tax must fall unevenly on things similar.
" N. Kunhali Haji vs State of Kerala(2) was a case where under the Kerala Buildings Tax Act, 1961 (19 of 1961) tax was sought to be imposed not on the basis of letting value but on the floor area of buildings.
It was held that the lack of classification had resulted in inequality with the result that the provisions of the Act were held to be invalid.
Relying on the above decisions, Mr. Desai argued that the method adopted by the Municipal Corporation of Abmedabad was against all known principles of rating and was violative of article 14 of the Constitution.
He submitted that there were a number of textile mills situated in different parts of the city some of which were old and some were of fairly recent origin.
Their method of construction was not the same, some being more permanent in the nature of things than others.
Apart from the question of the valuation of plant and machinery, Mr. Desai argued, it was impossible to suggest that a hypothetical tenant would be agreeable to take on rent the building of a mill which was well built and of recent origin as another which was fairly old and not constructed with the same kind of material.
Mr. Desai further argued that the situation of the mill was another factor which any tenant would (1) A.I.R. 1965 Mysore page 170.
(2) A.I.R. 1966 Kerala 14.
690 take into consideration and even if the buildings of the two mills were otherwise similar, a tenant would not agree to pay for one situated on the outskirts of the city the same rent as he would be willing to pay for the one in the heart of it.
In these circumstances, he argued it was wholly unreasonable to think that a tenant would be willing to pay Rs. 6 10 0 per 100 sq.
R. of the floor area whether it was in the heart of the city or in the outskirts of it, whether the building was old or whether it was new and whether it was well constructed or ill constructed.
Mr. Setalvad tried to argue that such a method of valuation was not unknown and in any event a person who wanted to take on rent a textile factory would only be concerned with what profits he could make out of it and that it did not matter to him as to where it was situate, in the city, whether the building was old or whether it was new.
or whether it was constructed properly with first class material or not.
According to Mr. Setalvad, the tenant would only go by the use to which the building could be put.
So far as the methods of valuation are concerned, we may refer to certain well known n textbook,, on the subject.
Halsbury in Vol.
32 (page 76, article 106 Third Edition) points out: "Except in the case of public utility undertakings which, in the absence of special circumstances, must as a matter of law be valued on the profits basis, there is no rule of law as to the method of valuation to be adopted for rating.
" This does not however mean that it is open to municipal authorities to fix upon any scale and say that they will adopt it.
They must show, if challenged, that the scale adopted by them allows the fixing of an annual value and provides a basis for determination of the same as that which a hypothetical tenant might be expected to pay for the building.
All the textbooks lay down certain methods of valuation.
As Halsbury points out at page 77, article 108: "In the absence of rental evidence of value, the accounts, receipts or profits of the occupier of the hereditament may be relevant.
The profits themselves are not rateable but they may serve to indicate the rent at which the hereditament might reasonably be expected to let, particularly whether profit is the motive of the hypothetical tenant in taking the hereditament, or where, the trade can only be carried on upon that hereditament.
" In Article 109, the learned author points out "Where neither actual rents nor the profits of trade afford evidence of annual rental value, a percentage of the cost of construction of structural value of the hereditament, or of a suitable hereditament, is sometimes taken as evidence.
" 691 This is referred to loosely as "the contractor 's method".
The value taken is sometimes called the "effective" capital value, that is to say, the capital value leaving out of account expenditure on unnecessary ornamentation, or accommodation surplus to requirements and after allowing, if necessary, for age and obsolescence.
The percentage to be applied to capital value is that prevailing in the market, and not necessarily that at which the actual occupier can borrow or obtain money.
Mr. Setalvad placed reliance on Faraday on Rating (5th Edition) where the learned author gives four recognised methods of arriving at the annual value of a hereditament at page 24 of the book, these being 1.
The "competitive or comparative method" i.e. by finding out rents actually paid for the hereditament in question and/or others of a similar kind, adjusting them to bring into line with the statutory conditions, and thus arriving directly at an estimate of the rent. . 2.
The "profits basis," or calculation by reference to receipts and expenditure, which is now required to be applied to certain public utility undertakings, and may properly be applied to any other hereditament on which a business is carried on which enjoys privileges in the nature of a monopoly. . 3.
The "contractor 's method," by which it is assumed, in the absence of any other better way of estimating the rent, that the tenant would arrive at it by finding the figure for which a contractor would provide him with premises neither more nor less suitable for his purpose, and the rate of interest on that cost which the contractor would charge him as rent.
The "unit method" by which schools may be valued at so much a place, hospitals at so much a bed, or certain industrial premises at so much a furnace, or other unit of output.
Mr. Setalvad laid particular stress on a passage at page 164 reading : "Modern factories are frequently found in groups due to Town Planning or in some cases because Trading Estates have been developed.
Under these conditions it is often possible to arrive at the rental value per foot super of floor area by applying the contractor 's basis to typical factories or because there are sufficient rents or by a combination of the two methods.
" This is followed by an illustration of a bakery and warehouse which goes to show that different portions of the building which were of different nature were measured and valued differently and then M2Sup.
CI/67 15 692 on the valuation of the total the floor area method was adopted for the purpose of similar buildings.
As the learned author himself. points out at page 1 5: "The floor area method of valuation is usually used ' where there are numerous factories in an area mostly similar and used for the same trade.
In the North mills, are frequently valued on this method." The learned author also stresses that great care must be taken in applying the price per square foot which will vary according to the character of the factory or mill.
Lower down in the same page, the learned author points out that a factory put up years ago may contain machinery which has become old fashioned and modern machines for the same purpose might occupy far more or less space, and therefore, require larger or smaller buildings, and probably reduce the wages bill and effect other economies whilst at the same time giving more output than the old cumbersome undertaking.
According to the author, the value of the old factory, from a rental point of view, would be less than that of a new one with the same power of production, since it would be impossible to find a tenant who would give the same rent for both concerns in as much as he could obviously operate in the new buildings more economically than in the old one.
There is nothing in the counter affidavit to show that conditions in the City of Ahmedabad with regard to textiles mills are such, as would make the method laid down at p. 164 of Faraday 'section book applicable.
The affidavit does not purport to show that the factories were: constructed at or about the same time or in groups or were so similar in their operation that their rental value could be determined at per foot super of floor area applying the contractor 's There is nothing, to show that any textile factory was, valued on the contractor 's basis and that from the figures of valuation go worked out, the rental value per foot super of floor area wag determined On, the other hand, the affidavit suggests that because 'in various cities it was common to let out premises on the basis ,of floor area, the municipal authorities of Ahmedabad had resorted to this method for fixing the rateable value.
We can take judicial notice of the fact that sometimes godowns or buildings constructed for office purposes are let out on the basis of floor area but even then, the rate would vary according to the nature of the building and according to the site of the building in the city.
It would also depend upon the age of the building and the amenities provided therein.
It would be impossible to say that in the City of Ahmedabad a tenant would be willing to pay at the same rate of rent for factory accommodation, no matter where the building was situate or when it was put up or how it was constructed.
693 Our attention was also drawn to other well known books on Rating like Ryde on Rating, Bean and Lockwood on Rating an Graham Eyre on Rating.
Incidentally, we may refer to Witton Booth on Valuations for Rating (Fourth Edition) at page 125 wherein the learned author states "Reductions of floor areas to units, as Already described, are necessary to effect reliable comparisons, but it is merely a mechanical process used in preparing material for the valuation, the actual valuation being the decision and application of the appropriate rate or rental value per unit of area.
This may be exactly to a standard, and, indeed, it probably will be to the majority of properties where these are so nearly alike in character as to be regarded for rating purposes as identical.
Where, however, rates or rental values per unit of area ale applied indiscriminately, without discernment on the wholesale, as it were inequalities are certain to arise, and these give rise to the whole method being caustically Preferred to as "valuations by the foot rule.
" The above comment is sufficient to show that this method can only be applied Where the majority of properties are so nearly Alike in character as to be regarded identical for rating purposes.
There is no such statement in the affidavit.
We are therefore not satisfied that conditions prerequisite for determination of annual value of textiles factories in Ahmedabad on the basis of rental value per foot super of floor area existed at the relevant time nor has.
it been shown to us that the.
so called contractor 's basis was adopted by the municipal authorities.
of Ahmedabad.
The method is not.
also one which is generally recognise by authorities on rating.
Applied indiscriminately as it appears to have been done in this case it is sure to give rise to, inequalities,: as there has been no classification of the factories on any rational basis.
Further, there does not seem to be any basis for dividing the factories and the buildings thereof under two general classes as buildings.used for processing and buildings for Reprocessing.
purposes.
What was said by this Court in The Lokmanya Mills ' case(1) applies with equal force to what has been done here and we must hold that the municipality did not observe the law and failed in its duty to determine the rateable value of each building and land, comprised in each of the textile factories in terms of r. 9(b) of the rules under the Bombay Provincial Municipal Corporations Act, 1949 so tar as the assessment book for the year 1966 67 is concerned.
Mr. Setalvad argued that at that stage there is only a proposal and even if the municipality had acted arbitrarily it was open to the (1) ; 694 assessees to take objection thereto and have proper valuations made and the assessment book prepared properly.
We cannot accept this argument.
If the municipality fails in its initial duty to act in terms of r. 9(b) it does not lie in its mouth to say that any irregularity, however patent on the face of it, is open to correction.
Moreover, the methods of correction in this regard are really illusory.
The Small Causes Court cannot decide the applicability of article 14 of the Constitution and according to the judgment of the Bombay High Court in Balkrishna vs Poona Municipal Corporation(1) (by which the District Judge would be bound).
". the words used in section 406(1) of the Act,.
do not cover the vires of the tax or the legality of the tax which is sought to be levied.
" Earlier, the learned Judges had pointed out after noting ss, 406 to 413 that : "the decision of Judge aforesaid upon any appeal against any such value or tax if no appeal is made therefrom under section 411 and if such appeal is made the decision of the District Court in such appeal shall be final." From this it follows that it would be useless for the assessee to take objections or file appeals against the decisions on rateable value to the authorities prescribed by the Act if he was challenging the determination of the rateable value as being violative of article 14 of the Constitution.
It is no answer to such a charge to say that the rateable value could be determined properly by the municipal authorities acting under the Act and the rules thereunder when they do not resort to any of the well known methods of valuation and cannot justify their arbitrary method.
With regard to the writ petitions questioning the annual values appearing in the assessment books for the years 1964 65 and 1965 66 which,were similarly prepared, a point of res judicata was taken in that some of these mills which have filed writ petitions before this court had challenged the assessment book in Writ petitions under article 226 of the Constitution before the Gujarat High Court and our attention was drawn to the judgment of the Gujarat High Court in W.P. No. 1365 of 1965 decided by that court very recently.
The decision in that case cannot operate as res judicata for the simple reason that the learned Judges pointed out at page 141 of the transcript of the judgment made over to us that there were not sufficient averments with regard to the plea of discrimination and violation of article 14 and the submission based on these grounds was therefore rejected and not gone into.
To quote from the judgment: "In the absence of any specific averment to the aforesaid effect, it is quite clear that the aforesaid plea cannot be (1) 65 D. L. R. 119.
6 9 5 said to have been properly pleaded.
Therefore, we reject that submission on that ground.
" Moreover, it appears to us that the right of appeal in a case where the rateable value is challenged on the ground of article 14 is hardly of any use to the assessee.
As already noted, section 128 of the Act shows that a municipal tax may be recovered by presenting a bill or by serving a written notice of demand or by attachment and sale of the defaulter 's immovable property etc.
As the Commissioner is not likely to pay heed to any complaint against the determination of any rateable value based on article 14 of the Constitution, he is bound to authenticate the assessment book under r. 19 and can under r. 39 cause to be presented to the assessee a bill for the amount of the tax due.
Under r. 41 he can serve upon the person liable for the payment of the tax a notice of demand in form if the amount of the tax has not been paid into the municipal office or deposited with him as required by sub section
(2) of section 406 within 15 days from the service of the bill.
Rule 42(1) lAys down that if the person to whom the notice of demand has been served under r. 41 does not within 15 days from the said service pay the sum demanded or show sufficient cause for non payment of the same to the satisfaction of the Commissioner and if no appeal is preferred against the said tax, such sum with costs of recovery may be levied under a warrant in form to be issued by the Commissioner by distress and sale of movable property of the defaulter or the attachment and sale of immovable property of the defaulter etc.
Section 406(1) provides for appeals against any rateable value or tax fixed or charged under the Act.
Section 406(2) provides inter alia as follows: "No such appeal shall be heard unless (a) it is brought within fifteen days after the accrual of the cause of complaint; (b) in the case of an appeal against a rateable value a complaint has previously been made to the Commissioner as provided under this Act and such complaint has been disposed of; (e) in the case of an appeal against a tax, or in the case of an appeal made against a rateable value after; a bill for any property tax assessed upon such value has been pre sented to the appellant, the amount claimed from the appellant has been deposited by him with the Commissioner.
" The net result of all this is that unless the assessee pays the amount of tax demanded, his appeal cannot be heard so that if he questions the rateable value or the levy of the tax, he must in any event, deposit the amount demanded.
In effect, the Act and the appeal rules do not make any provision for relief to an assessee 696 who complains that the assessment book has been prepared in violation of the law.
This may be illustrated from what happened in the case of the Ahmedabad Laxmi Cotton Mills Co. Ltd. who have preferred Writ Petition No. 207 of 1966.
In this case, the municipality prepared the assessment book for the year 1965 66 adopting the figure from the previous year under.
The Mills finally complained on July 3, 1965 raising various objections regarding the jurisdiction and the validity of the imposition of property tax on the floor area method.
These were over ruled and the assessment was finalised by an order dated September 15, 1965.
On September 17, 1965 the municipality issued a bill in respect of the assessment.
The Mills filed a tax appeal on September 27, 1965.
On October 7, 1965 a notice of demand under r. 4 1 (1) of the Taxation Rules was made on the Mills.
A Writ Petition was filed in the Gujarat High Court being Special Civil Application No. 1155 of 1965 on October 16, 1965.
This petition along with various other petitions filed by other textile mills was dismissed by a common judgment in Application No. 1365 of 1966 on May 5, 1966.
On May 7, 1966 the municipality issued an order of attachment under r. 45(1) of the rules.
The Mills filed another Writ Petition in the Gujarat High Court against the issue of the order of attachment, but this was dismissed in limine on July 18, 1966.
It may be noted that the Mills in common with other Mills had preferred an application for grant of a certificate under articles 132 and 133 of the Constitution against the dismissal of the Writ Petition on May 5, 1966 and such certificate was granted on June 20, 1966.
Mr. Desai 's next challenge was directed against sub rr.
(2) and (3) of r. 7.
According to him, it was beyond the legislative competence of the State to levy a property tax on plant and machinery The relevant entry in List II of the 7th Schedule is item 49, namely, 'Taxes on land and buildings '.
The corresponding entry in List 11 under the Government of India Act, 1935 was taxes on "lands, buildings, hearths and windows." Mr. Desai contended that the legislature was not competent by the definition of 'land ' in section 2(3) of the Act to include plant and machinery even if they were attached to the earth or permanently fastened to anything attached to the earth.
Mr. Desai argued that it may be that the definition of 'land" in certain Acts embraces plant and machinery but when the legislature rates to impose a tax on plant and machinery in the garb of land it travels beyond its powers.
He argued that apart from the definition in certain Acts and deeming provisions contained therein, plant and machinery can never be said to form part of the land or included in land or building.
Counsel conceded that entries in legislative lists were certainly to be construed very widely but even then no artificial meaning or arbitrary extension of the meaning of the words in an entry could be allowed.
In this connection, our attention was drawn to the observations 697 of Gwyer, C.J. in re.
The Central Provinces and Berar Act No. XIV of 1938(1) that ". a broad and liberal spirit should inspire those,.
whose duty it is to interpret it, but.
I do not imply by this that they are free to stretch or pervert the language of the enactment in the interests of any legal or constitutional theory, or even for the purpose of supplying omissions or of correcting supposed errors.
" In Diamond Sugar Mills Ltd. & Anr.
vs The State of Uttar Pradesh & Anr.(2) the question was, whether entry 52 of, List 11 of the ' Seventh Schedule which empowered State Legislatures to make ii law relating to "taxes on the entry of goods Into a local area for consumption, use or sale therein,," sanctioned the passing of the U.P. Sugarcane Cess Act, 1960 authorising the State Government to impose ,a on the entry of sugarcane in the premises of a factory for I consumption or sale therein.
It Was contended by the appel lant that the premises of a factory was not a "local area" within the meaning of the said Entry.
The majority of Judges in that case held the impugned legislation to be beyond the competence of the State Legislature and observed: "In considering the meaning of the words "local area" in entry 52 we have, on the one hand to bear in mind the salutary rule that the words conferring the right of legislation should be interpreted liberally and the powers conferred should be given the widest amplitude;: on the other hand, we have to guard ourselves against extending the meaning of the words beyond their reasonable connotation, in an anxiety to preserve the power of the legislature.
" In this case, counsel argued the language was clear.
and unambiguous and therefore it was not open to resort to any artificial definition.
He also referred to Legislative Practice in India on this point and contended that the same was against giving an extended meaning to the expression 'land and buildings ' so as to include plant and machinery.
In re.
The Central Provinces and Berar Act No. XIV of 1938(3), the question was whether a tax on retail sales of 'motor spirit and lubricants was ultra vires the Provincial Legislature being a duty of excise within the meaning of entry No. 45 in List 1 of the 7th Schedule to the Government of India Act, 1935 and not within entry No ' 48 of List 11 of that Schedule.
There Gwyer, C. J. referred to the legislative practice preceding the Constitution Act and said at.p.
53 "Lastly, I am entitled to look at the manner in which Indian Legislation preceding the Constitution Act had (1) at 37.
(2) [1961] 3 section C.R. 242.@ 248.
(3) 698 been accustomed to provide for the collection of excise duties;. .
In all the Acts by which these duties were imposed it is provided (and substantially by the same words) that the duty is to be paid by the manufacturer or producer, and on the issue of the excisable article from the place of manufacture or production.
" In the same case, Sulaiman, J. observed: "Our attention has not been drawn to any provincial enactment, which might have imposed any excise duty on the retail sale of motor spirit and lubricants, or for that matter on the retail sale of any other goods." That courts can look into the legislative practice was again adverted to in Ralla Ram vs The Province of East Punjab(1) where the question related to the vires of a Punjab Act taxing the owner of buildings and lands on their annual value.
There the contention was that the tax was really one on income and as such beyond the competence of the Provincial Legislature.
The Court referred to the Central Provinces and Berar Act 's case and examined the legislative practice in India.
Mr. Desai referred us to a large number of Municipal Acts passed by different Provincial and State Legislatures in India both before and after 1935 to show that plant and machinery were expressly excluded from the purview of such taxes.
We may refer to a few only of them which are : Punjab Municipal Act, 1911, section 3(1); The Madras Act IV of 1884 section 65(2); Madras District Municipalities Act, 1920 section 82(2) proviso (b); The Patna Municipal Corporation Act, 1951, section 130(3); The Bombay District Municipalities Act, 1911, s ' 3(11); The Bombay Municipal Boroughs Act section 3(1); The Bombay Municipal Corporations Act, 1988, section 154(2); The Calcutta Municipal Act, 1899, section 151 proviso (2); North West Province and Oudh Municipal Act, section 3(1) proviso; The Central Provinces Municipalities Act of 1903 section 36 proviso; and The Central Provinces and Berar Municipalities Act, 1922 section 73 proviso.
Mr. Desai also drew our attention to the English Rating and Valuation Act, 1925.
Therein section 2(1) gives the power to levy a consolidated rate and sub section
(3) states that the rate shall be at a uniform amount, per pound on the rateable value of each hereditament in that area.
Section 24(1) of that Act provides that plant and machinery in or on the hereditament as belongs to any of the classes specified in the Third Schedule to the Act shall be deemed to be a part of the hereditament.
This according to Mr. Desai went to show that even in England plants and machinery were not considered part of the hereditament and were made so by a sort of fiction.
It was argued that (1) (19481) F.C.R. 207.
699 by a deeming provision the meaning of a word may be extended, but when the language was clear, no such extension by way of interpretation was possible.
Our attention was also drawn to a number of sections in the Bombay Act of 1949 which on the face of it, went to show that land in those sections was clearly not meant to include the plant and machinery situate therein.
On this question, Mr. Setalvad relied on the principles of rating of plant and machinery in England.
We have already noted the provisions of the Rating and Valuation Act, 1925.
It is pointed out in Ryde on Rating (Eleventh Edition) at p. 399 : "From towards the end of the eighteenth century to the passing of the Rating and Valuation Act, 1925, there has been controversy as to the inclusion in valuation of machinery and plant, and as to the extent to which (if machinery and plant were included) the valuation was to be affected.
The series of judicial authorities on this subject extends from R. vs St. Nicholas, Gloucester, decided in 1783(1) to Kirby vs Hunslet Union (2) and Smith vs Willesden Union(3), decided in 1906 and 1919.
The effect of the decision of the House of Lords in Kirby vs Hunslet Union(2) was to sweep away the principles on which a discrimination had previously been made between machinery and plant which was to be "taken into account" in valuation, and that which was not such as physical annexation to the hereditament, or legal annexation in the sense that the thing in question would pass to the tenant at landlord 's fixtures on a demise. . ; and practically to direct the rating authority to value the hereditament equipped with Machinery and plant as it appears to the eye.11 The matter is thus put in Witton Booth on Valuations for Rating (Fourth Edition) at p. 575 : "The rateability of plant and machinery under the law which applied universally before 1925, and which still applies to hereditaments valued by reference to the profits 'earned therein depends on legal decisions on what is comprehended by the term "land".
These decisions were based on principles applicable to fixtures generally, of which rateable plant and machinery were one kind.
" It will therefore be noticed that the rateability of plant and machinery depended on judicial decisions as to the meaning of the (1) (3) (2) 700 word "land".
There is no reason why we should accept those decisions as to what was comprehended by the term "land" when we find in our statutes plant and machinery being excluded therefrom.
In Kirby vs Hunslet Union (1) Lord Halsbury expressed; him self thus at p. 49 ". decline myself to enter into what I may call the original equities which might have guided this matter.
It is, enough for me that a long series of decisions, for certainly half a century, have established the bald proposition, which is all I am insisting upon, namely '.
that although the machinery may not be part of the freehold, it yet is to be taken into account, and in saying that, I do not want to muffle it in a phrase, but what I mean by that is, that to increase the amount of the rate which is exacted from the tenant you may enter into that question and form a judgment upon it, although, as a matter of fact, the machinery may hot be attached to the free hold.
" There, the Act in question was Parochial Assessment.
Act, 1836 under which the assessment of hereditaments was regulated on the principle that the rateable value was the rent which might be expected to be given for the hereditament alone.
The contention on behalf of the appellant before the House of Lords was that machinery affixed to the soil so as to become a part of the freehold must be taken into account in assessing the rateable value but no other machinery.
Delivering judgment, Lord Halsbury pointed out that : "The overseer had a comparatively simple problem to solve, although it is difficult enough sometimes; he sees the place being conducted as a brewery, or an iron foundry, or what not.
, he looks at the premises, he looks at the furniture which is necessary for carrying on the business as a brewery or foundry; he does not in his own mind analyze, and to my mind he ought 'not to analyze, what would be likely to be the initial arrangements between the intended brewer and the owner of the freehold, to see who should provide this or that engine, or what not, but he looks at the premises as they are, as they are being occupied, and as they are being used, and he says to himself, "Well, looking at the whole of the place, such and such is the rent which would probably be paid by a tenant from year to year for such an establishment as this." (1) 701 .rm60
The problem in our case is not quite.
the same.
The hypothetical tenant would certainly take, into Consideration the machinery in the building if he was going to rent it for the purpose of running a textile factory.
But if the State Legislature had power to levy a tax only on land and buildings, we do not see how the same could be levied on machinery contained in or situate on the building even though the machinery was there for the use of the building for a particular purpose.
It therefore appears to us that r. 7(2) of the rules framed under the Bombay Act of 1949 was beyond the legislative competence of the State.
The rule also suffers from another defect, namely, that it does not lay down any principle on which machinery is to be specified by public notice by the Commissioner to be deemed to form part of such building for the purpose of fixing the, rateable value.
To this, Mr. Setalvad argued that if the building was equipped with machinery for the purpose of running a textile mill, whatever machinery was there for the purpose would be valued.
According to him, the question would be, which of the machinery would help in the enjoyment of the property and thereby add to its rateable value.
Unfortunately, the specification of the classes is done from time to time by the Commissioner with the approval of the Corporation irrespective of the question as to where they are to be found.
It therefore depends on the arbitrary will of the Commissioner as to what machinery he would specify and what he would not.
Moreover, he is the only person who can examine this question.
There is no right of appeal from any specification made under sub r.
(3) of r. 7 except that the Commissioner is to act under the directions of the Standing Committee.
Rule 7(2) shows that all plant and machinery may not be taken into account for the purpose of valuation and any such plant or machinery which is not included in the classification may escape rateability however much they may be prized by the tenant who takes the premises on rent.
It seems to us, therefore, that r. 7(2) is beyond the legislative competence of the State Legislature and sub r.
(3) of r. 7 is also invalid on account of excessive dele gation of powers by the Legislature.
In view of the above, it is not necessary to go into the question as to whether the Deputy Municipal Commissioner could exercise quasi judicial powers of the Commissioner as regards the determination of the rateable value under section 49(1) of the Act and we express no opinion thereon.
In the result, the petitions are allowed.
A writ of mandamus will issue in each case directing the respondent No. 1, Municipality, to treat the relevant entries in the assessment book for the years 1964 65.
1965 66 and 1966 67 relating to special property 702 section questioned in these petitions as invalid and cancelled; and directing respondent No. 1 to prepare fresh assessment lists for the said years relating to the textile mills and other properties dealt within the said special property section.
The petitioners are entitled to costs of these applications.
One set of hearing fee.
G.C. Petitions allowed.
[/INST]Held, that in a proceeding under section 36 of the Bengal Money Lenders Act, 1940, it is not competent to the court to go behind the decree and embark on an enquiry as to whether the decree holders on record were in fact benamidars for another person.
Scope of section 36 of the Act discussed.
Renula vs Manmatha (72 I.A. 156) and Bank of Commerce Ltd. vs Amulya Krishna Basu Boy Chowdhury ([1944] F.C.R. 126) referred to.
</s>
|
<s>[INST] Summarize the judgementAppeal No. 31 of 1957.
Appeal from the judgment and order date September 27, 1955, of the Jammu and Kashmir High Court in Misc.
Application No. 23 of 1955.
Jaswant Singh, Advocate General for the State of Jammu and Kashmir and R. H. Dhebar, for the appellant.
section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for respondent.
February 23.
The Judgment of the Court was delivered by SARKAR, J.
The respondent is a Civil Engineer who held various positions under the appellant, the Government of the State of Jammu and Kashmir.
On September 8, 1954, while the respondent was holding the post of Development Commissioner, he was placed under suspension by an order made by the appellant on that date.
Later, the appellant passed another order on February 12, 1955, demoting the petitioner to the post of a Divisional Engineer.
On May 12, 1955, the respondent moved the High Court of Jammu and Kashmir under article 32(2A) of the Constitution of India as applied to the State of Jammu and Kashmir, for a writ directing the appellant not to give effect to the order dated February 12, 1955, and to recognise him as the Chief Engineer, the substantive post held by him when he was suspended, with effect from the date of suspension and with all the emoluments of that office.
The High Court issued the writ as prayed.
The State appeals from the judgment of the High Court, 971 In the view that, we think, must be taken of this case, it is unnecessary to go into the facts a great deal.
At one stage of his career under the appellant, the respondent held a job of some responsibility in what was called the Sindh Valley Hydro Electric Scheme.
This Scheme was for generating electric power by dams erected in the Sindyh water course and for using the water for irrigation purposes.
The work on this Scheme seems to have commenced some time ago.
The respondent was connected with the Scheme from 1949 till he was transferred from the work in 1953.
It appears that the appellant was dissatisfied with the Progress of the work and the manner in which it had been carried out and decided to establish a Commission of Inquiry (a) to investigate into the reasons for (i) progressive rise in the estimates, (ii) the defective planning and the delay in the execution of the work and (iii) the other irregularities and (b) to fix responsibility upon the persons concerned and make appropriate recommendations.
Pending the investigation various officers associated with the planning and execution of the Scheme including the respondent, were placed under suspension on September 8, 1954.
Thereafter on October 20, 1954, a commission was set up by the appellant consisting of various persons.
The Commission made certain enquiries and eventually submitted its report to the appellant.
The appellant then made the order demoting the respondent purporting to act on the basis of the report.
It is not necessary to set out the facts any more.
The respondent, in his application for the writ, questioned the validity of the orders suspending and demoting him on these grounds.
He alleged that the Commission did not conduct the enquiry according to the rules of natural justice.
He said that he was not even informed of the charges against him nor given a proper hearing and that if he had been given proper opportunity, he would have proved that he had not been at fault at all.
He also said that the appointment of the Commission could only have been made under section 2 of the Public Servants (Inquiries) Act, 1977 124 972 (Kashmir era), and must, therefore, be deemed to have been so made.
He complained that the provisions of this Act were not observed by the Commission in making the enquiry.
Lastly, he said that the respondent could be reduced in rank only in accordance with the procedure laid down in the Kashmir Civil Service Rules passed by the State Council Order No. 81 C of 1939 and this procedure had not been followed.
In the High Court, the question as to whether these Rules had the status of law seems to have been debated at great length.
The High Court took the view (that they had.
We will proceed on the basis that the High Court was right and the allegations made by the respondent in his petition had been substantiated.
Now, the High Court was moved to exercise its powers under article 32 (2A) of the Constitution.
The order made by it cannot be upheld if it was not justified by that provision.
This is not in dispute.
That provision is in these terms: article 32(2A).
" Without prejudice to the powers conferred by clauses (1) and (2), the High Court shall have power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority, including in appropriate cases any Government within those territories, directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by this Part.
" The High Court can then exercise its powers under article 32 (2A) only " for the enforcement of any of the rights conferred by this Part ".
The Part referred to is Part III and the rights conferred by it are the fundamental rights.
Therefore, the High Court can act under cl.
(2A) of article 32 only to enforce a fundamental right.
The only fundamental right, however, on the violation of which learned counsel for the respondent could rely in support of the order of the High Court was that conferred by article 14, namely, the right to the equal protection of the laws.
He said that the 973 respondent was entitled to have the procedure prescribed by the Kashmir Civil Service Rules followed before the order demoting him could be made and as that procedure was not followed, his client had been denied the equal protection of the laws.
It seems to us that even if the Rules are a law and the respondent has not been given the benefit of them, all that can be said to have happened is that the appellant has acted in breach of the law; But that does not amount to a violation of the right to the equal protection of the laws.
Otherwise, every breach of law by a Government would amount to a denial of the equal protection of the laws.
We are not aware of any authority in support of that proposition and none has been cited to us.
Nor are we able to find any support for it in principle.
It is not the respondent 's case that other servants of the appellant had been given the benefit of those Rules and such benefit has been designedly denied only to him.
It seems to us that the appeal must be allowed on the simple ground that the respondent 's petition does not show a violation of any fundamental right.
The High Court had no power to act under article 32 (2A) at all.
We think it right to point out that articles 226 and 311(2) of the Constitution of India had not been applied to the State of Jammu and Kashmir at any material time.
No question of the respondent 's application being maintainable in view of these articles, therefore, arises.
The appeal is accordingly allowed.
There will be no order as to costs.
Appeal allowed.
[/INST]A partnership consisting of four persons was formed on March 31, 1949, which was to come to an end on March 31, 1954.
On July 27, 1951, a fifth partner was taken into the partnership.
On March 29, 1954, a new partnership was entered into taking in a sixth partner will) contributed Rs. 40,000 as his share to the capital.
In the partnership deed no express provision was made as to the manner in which profits and losses were to be divided.
A deed of rectification was executed on September 17, 1955, after the close of the account year 1054 5 5, adding a clause to the partnership deed that the partners shall share in the profits and losses in proportion to their contributions to the capital.
Upto the end of the assessment year 1954 55, the old firms were registered under section 26A of the Income tax Act.
The new firm applied for registration for the assessment year 1955 56, but registration was refused on the ground that there was no specification of shares of the partners.
Held, that registration was rightly refused.
Section 26A requires that for registration in a particular year there must be an instrument of partnership specifying the shares of the partners in the profits and losses.
Though in the present case there was an instrument of partnership in the year of assessment 1955 56, it did not specify the shares.
The right of registration can be claimed only in accordance with section 26A and the assessee must bring himself strictly under the terms of that section.
Ravula Subba Rao vs The Commissioner of Income tax, Madras, [1956] S.C.R. 577 and R. C. Mitter & Sons vs Commissioner of Income tax, E1959] , referred to.
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<s>[INST] Summarize the judgementiminal Appeal No.155 of 1965.
M. R. Barot and R. Gopalakrishnan, for the appellants.
P. K. Chatterjee, R. H. Dhebar and section P. Nayyar, for the respondent.
The Judgment of the Court was delivered by Hegde,J.
The appellants in this appeal are two police officers.
The first appellant Bhanuprasad Hariprasad Dave was the police Sub Inspector and the second appellant, Rajuji Gambhirji, was his writer constable in February 1963.
At that time both of them were attached to the Navrangpura police station, Ahmedabad.
They were tried and convicted by the Special Judge, Ahmedabad, for offences under section 161 read with section 165 A of the Indian Penal Code and section 5 (1) (d) read with section 5 (2) of the Prevention of Corruption Act, (No. 2 of 1947), and for those offences each of them was sentenced to suffer rigorous imprisonment for two and half years and a fine of Rs. 1,000, in default to suffer further rigorous imprisonment for year.
The judgment of the learned Special Judge was affirmed by the High Court ,of Gujarat.
It is against that judgment, this appeal has been filed, after obtaining special leave from this Court.
To state briefly, the prosecution case is as follows : Ramanlal, the complainant in this case, wrote a postcard on February 11, 1963 to one Madhukanta, a lady teacher, requesting her to ask Chandrakanta, another lady teacher working with her, to meet him in connection with certain work.
Therein he also wrote that he would be glad if Madhukanta could accompany Chandrakanta.
The headmaster of the school where Madhukanta and Chandrakanta were working, happened to read that postcard.
She took Madhukanta to task for allowing strangers to write to her in that manner.
Piqued by the conduct of Ramanlal, Madhukanta made over the postcard in question to the first appellant, probably with a request that Ramanlal might be pulled up for his conduct.
On February 16, 1963, the first appellant sent the second appellant to fetch Ramanlal to the police station.
On his arrival at the police station, Ramanlal was abused and slapped by the first appellant.
With a view to got out of the situation.
Ramanlal agreed to pay the sum demanded.
He therefore asked the first appellant time for payment till the 18th.
The first appellant agreed to the same.
On the morning of 18th, Ramanlal met the Deputy Superintendent of Police, AntiCorruption Department, and complained to him about the incident in question.
He was asked to give a written complaint in that regard which he did.
Thereafter he produced before the Dy.
S.P. ten currency notes of Rs. 10 each.
The numbers of those notes were noted and then those notes were treated with anthracene powder.
Ramanlal was asked to give those notes to the first appellant if he made any further demand for bribe.
Thereafter he was sent to the police station with the panch witness, Dahyabhai.
But when they went to the police station they found that the first appellant was not there.
They were told that he had gone to attend court.
Hence Raman lal and Dahyabhai returned to the office of the Anti Corruption Department and reported to the Dy.
S.P. about the same.
Under instructions from the Dy.
S.P. he again went to the office of the Anti Corruption Department on the evening of that day with currency notes.
Those notes were again treated with anthracene powder and their numbers noted.
Ramanlal was again sent to the Police station with Dahyabhai on that evening at about 5 3o p.m.
When they went there, the first appellant was not there, but the second appellant was there.
He told them that the first appellant was expected in the station at any moment.
Thereafter the second appellant, Ramanlal and Dahyabhai went to a nearby tea shop and took tea.
By the time they returned to the police ,station the first appellant was there.
Ramanlal told the first appellant that he had brought the money.
Then he asked him to pay the same to the second appellant who was in one of the rooms of the police station.
When Ramanlal went to pay the money to the second appellant, the first appellant took out the postcard written by Ramanlal to Madhukanta, showed it to Dahyabhai and thereafter tore it to pieces and burnt it.
Meanwhile Ramanlal went and paid the currency notes in question to the second appellant.
While Ramanlal and Dahyabhai were in the police station, police Sub Inspector Erulker and constable Santramji, both belonging to the Anti Corruption Department, were observing from a nearby compound the happenings in the police station.
The second appellant immediately on receiving the notes in question left the police station.
But he was followed by constable Santramji.
From the police station the second appellant first went to the shop of one Sanghvi and changed one of the currencynotes.
From there he went to the pan shop of Sendhalal and there changed three more currency notes.
Thereafter constable Santramji was not able to keep track of him.
Meanwhile when things did not go according to plan, Ramanlal was somewhat confused.
He after paying the amount to the second appellant L1OSup.
Cl/68 3 26 straight rused back to the Dy.
S.P. and told him what had happened at the police station.
Immediately, the Dy.
He seized the burnt pieces of the postcard.
Some of the unburnt pieces were recognised by Ramanlal as portions of the postcard written by him to Madhukanta.
From there the Dy.
S.P. proceeded to the shop of Sanghvi and Sendhalal and seized the currency notes changed in their shops by the second appellant.
Their numbers tallied with the numbers of the notes earlier handed over to Ramanlal after being treated with anthracene powder.
Those notes were full of anthracene powder.
The same night the second appellant was arrested and at that time it was found there ,was considerable anthracene powder on his person.
After in vestigation the appellants were prosecuted for the offences mentioned earlier.
Both the trial court and the High Court have accepted the prosecution case.
This Court being a court of special jurisdiction does not examine the evidence afresh except under exceptional circumstances.
No good reasons were shown to us for departing from the ordinary rule.
Hence we proceed on the basis that the findings of fact reached by the High Court are ,.correct.
Before proceeding to examine the various contentions ad vanced on behalf of the appellants it is necessary to mention that in this case there were two investigations.
As seen earlier the trap in this case was laid by the Dy.
S.P., Anti Corruption Department.
But when the case came up for trial before the learned Special Judge objection was taken to the trial of the case on the ground that in view of the provisions of the Bombay State Commissioner of Police Act, 1959, the investigation in this case should have been made by a Superintendent of Police as there was a Police Commissioner for the city of Ahmedabad.
The learned Special Judge accepted that contention and directed a fresh investigation to the extent possible by one of the Superintendents of Police.
Because of the fresh investigation, in respect of most of the prosecution witnesses, the police diary contained, two statements one recorded by the Dy.S.P. and the other by the S.P. in the course of the trial of the case, several prosecution witnesses were alleged to have gone back on the statements given by them during investigation.
While deposing in court 27 Madhukanta asserted that she had destroyed the postcard written by Ramanlal as soon as she read the same whereas both Ramanlal as well as the panch witness Dahyabhai had deposed that the first appellant had shown them the postcard in question.
S.P. wherein she appears to have stated that she had given the postcard in question to the first appellant.
Mr. Barot, learned counsel for the appellants, strenuously contended that in view of the order of the Special Judge, directing re investigation, in law, the record of the investigation made by the Dy.S.P. stood wiped out, and therefore Madhukanta should not have been cross examined with reference to the statement alleged to have been made by her during the first investigation.
We are unable to accept this contention as correct.
It is true that the first investigation was not in accordance with law, but it is no sense non est.
Investigation, as held by this Court in section N. Bose vs State of Bihar(1), includes the laying of trap.
That part of the investigation was, admittedly done by the Dy.
The statements recorded by the Dy.
S.P. in the course of his investigation ' though the investigation in question was illegal, (see, H .
N. Rishbud vs the State of Delhi(2), are still statements recorded by a police officer in the course of investigation under Chapter XIV of the Code of Criminal Procedure and consequently they fall within the scope of sections 161 and 162 of the said Code.
Neither in Rishbud 's case(2) nor in section N. Bose 's case(), where investigations had been carried on in contravention of section 5 A of the Prevention Corruption Act, this Court considered those investigations as non est.
Both the trial court and the High Court have accepted the evidence of Ramanlal and Dahyabhai in preference to that of Madhukanta that the first appellant was in possession of the postcard in question on February 18, 1963.
This is essentially a finding of fact.
In our judgment in coming to that conclusion those courts did not ignore any legal principle.
It was next contended by the learned counsel for the appellants that the appellants were convicted solely on the basis of the testimony of Ramanlal, the Dy.S.P. Erulker and Santramji, who, according to him, are all interested witnesses and their evidence not having been corroborated by any independent evidence, the same was insufficient to base the conviction of the appellants.
Before examining this contention it may be mentioned that so far as Dahyabhai was concerned, he appeared to have turned hostile to the prosecution at the trial.
He supported the evidence of Ramanlal in some respects; but in most important respects he did not support the prosecution case.
He admitted (1) Cr.A.109/1967,decided on March26,1968.
(2) 11955] 1 S.C.R. 1150.
28 to have accompanied Ramanlal both in the morning and on the evening of the 18th.
He also admitted that he and Ramanlal met a police Sub Inspector in the police station who showed them the postcard written by Ramanlal to Madhukanta.
He also corroborated Ramanlal about the talk that Ramanlal had with that Sub Inspector, in connection with the payment of bribe.
But when it came to the question of identifying that Sub Inspector, he denied that it was the first appellant.
He also did not identify the second appellant.
It was obvious that the had been gained over.
So far as Sanghvi is concerned, he admitted that a police constable in uniform came to his shop on the evening of the 18th and changed a ten rupee corrency note.
But he stated that he was not able to say whether that constable was the second appellant.
Sendhalal deposed that a person came to him on the evening of the 18th and changed three 'ten rupee currency notes.
He also stated that he was unable to say whether it was the second appellant who changed those notes; he went a step further and stated that the person who came to his shop was not in uniform.
But the fact remains that the currency notes seized from the shops of Sanghvi and Sendhalal are the very notes whose numbers had been earlier noted by the Dy.
S.P. and further treated with anthracene.
There is the evidence of constable Santramji to establish that the notes in question were changed at the shops of Sanghvi and Sendhalal by the second appellant.
The trial court as well as the High Court accepted the evidence of Dahyabhai, Sanghvi and Sendhalal to the extent it supported the prosecution case and rejected the rest.
It was open for those courts to do so.
Now coming back to the contention that the appellants could not have been convicted solely on the basis of the evidence of Ramanlal and the police witnesses, we are of opinion that it is an untenable contention.
The utmost that can be said against Ramanlal, the Dy.S.P., Erulker and Santramji is that they are partisan witnesses as they were interested in the success of the trap laid by them.
It cannot be said and it was not said that they were accomplices.
Therefore, the law does not require that their evidence should be corroborated before being accepted as sufficient to found a conviction.
This position is placed beyond controversy by the decision of this Court in the State of Bihar vs Basawan Singh(1), wherein this Court laid down, overruling the decision in Rao Shiv Bahadur Singh vs State of Vindhya Pra desh (2) that where 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 convict (1) ; (2) 29 ing the accused person.
We are unable to agree that any different rule was laid down in Major E. G. Barsay vs The State of Bombay(1).
It must be remembered that the decision in Basawan Singh 's case(1) was given by a Bench of Five Judges and that decision was binding on the Bench that decided Major Barasay 's case(1).
Some of the observations in Major Barasay 's case(1) no doubt support the contention of the appellants.
But those observations must be confined to the peculiar facts of that case.
It is now well settled by a series of decisions of this Court that while in the case of evidence of an accomplice, no conviction can be based on his evidence unless it is corroborated in material particulars but as regards the evidence of a partisan witness it is open to a court to convict an accused person solely on the basis of that evidence, if it is satisfied that that evidence is reliable.
But it may in appropriate case look for corroboration.
In the instant case, the trial court and the High Court have fully accepted the evidence of Ramanlal, the Dy.
S.P., Erulker and Santramji.
That being so, it was open to them to convict the appellants solely on the basis of their evidence.
That apart, their evidence is substantially corroborated by the evidence of Dahyabhai, Sanghvi and Sendhalal.
in the case of partisan witnesses, the corroboration that may be looked for is corroboration in a general way and not material corroboration as in the case of the evidence of accomplices.
It was next contended that even if we accept the prosecution case in full, no offence can be said to have been made out under section 161 of the Indian Penal Code.
We are unable to accept that contention.
To establish the offence under section 161 of the Indian Penal Code all that prosecution had to establish was that the appellants were public servants and that they had obtained illegal gratification for showing or forbearing to show, in the exercise of their official functions, favour or disfavour to Ramanlal.
If he had used his official position to extract illegal gratification the requirements of the law is satisfied.
This position is made clear by the decision of this Court in Mahesh Prasad vs The State of U.P. (3) and Dhaneshwar Narain Saxena vs The Delhi Administration (4).
Lastly we come to the question whether the prosecution was barred by section 161 (1) of the Bombay Police Act, 1951 (Bombay Act 22 of 1951), which, to the extent material for our present purpose, says that in any case of alleged offences by a police officer or of a wrong alleged to have been done by such officer by any (1) [1962] 2 S.C.R.195.
(2) ; (3) ; (4) ; 30 act done under colour or in excess of any such duty or authority as mentioned in that Act, the prosecution shall not be entertained or shall be dismissed if instituted, more than six months of the act complained of.
Admittedly, the prosecution in this case was instituted more than six months after February 18, 1963, the day on which illegal gratification was obtained.
In support of the contention that the prosecution is barred by limitation, reliance was placed on the decision of this Court in Virupaxappa Veerappa Kadampur vs The State of Mysore(1).
Therein a head constable was charged under section 218 of the Indian Penal Code.
The prosecution case was that on February 23, 1954 on receipt of some information that some persons were smuggling ganja, the headconstable arrested a person with a bundle containing 13 packets of ganja and seized them, and in the panchnama he incorrectly showed the seizure of nine packets of ganja, and that on the next day he however prepared a new report in which it was falsely recited that the person with the bundle ran away on seeing the police after throwing away the bundle containing nine packets of ganja.
The allegation against the head constable was that the prepared a false report with the dishonest intention of saving the person concerned from whom the ganja was seized and who had been actually caught with ganja, from legal punishment.
This Court held that under section 161 of the Bombay Police Act, 1951, the words "under colour of duty" have been used to include acts done under the cloak of duty, even though not by virtue of the duty; that when the head constable prepared a false report he was using the existence of his legal duty as a cloak for his corrupt action and that, therefore, the act thus done in dereliction of his duty must be held to have been done "under colour of duty".
The rule laid down in that decision is inapplicable to the facts of the present case.
He by taking advantage of_that duty pre pared a false panchnama and false report and therefore it was held that what he did was under the colour of duty.
In the present case the appellants cannot be said to have received the bribe under the colour of their duty.
There was no connection between the duties to be performed by them and the receipt of the bribe in question.
The facts of the present case bear some similarity to the facts in the State of Andhra Pradesh vs N. Venugapol(2) and the rule laid down therein bears on the question under discussion.
This cannot be said to have been done under (1) [1963] Supp. 2 S.C.R. 6.(2) ; 31 colour of duty.
The charge against the second appellant is that he aided the first appellant in his illegal activity.
For the reasons mentioned above, this appeal fails and the same is dismissed.
The appellants who are on bail shall surrender forthwith to serve the remaining portion of the sentences imposed on them.
Y.P. Appeal dismissed.
[/INST]The ten appellants were convicted under sections 302 and 201 both read with section 149 of the I.P.C. mainly on the evidence of four eye witnesses who were members of the family of the two murdered persons.
Four of the appellants were sentenced to death and the rest to imprisonment for life.
The High Court confirmed the convictions and sentences.
in appeal to this Court by special leave it was contended, inter alia, on behalf of the appellants that (i) there were various discrepancies and inconsistencies in the evidence showing miscarriage of justice; (ii) though two independent eye witnesses were available they were purposely excluded and only the family members were examined as eye witnesses; and the High Court had wrongly refused to draw from their non examination an adverse inference under section 114(g) of the Evidence Act; and (iii) the sentences on the appellants were wrongly confirmed by the High Court.
HELD : (i) There was no reason to interfere with the concurrent findings of the trial court and the, High Court that the appellants were responsible for the deaths of the two deceased persons and were guilty of ,the offences they were charged with.
[782 E] (ii) The prosecutor need not examine witnesses who, in his opinion, have not witnessed the incident.
Normally, he ought to examine all the eye witnesses in support of his case.
But in a case where a large number of persons have witnessed the incident, it is open to him to make a selec tion which must, however, be fair and honest and not with a view to suppress inconvenient witnesses.
If it is shown that persons who had witnessed the incident have been deliberately kept back, the court may draw an adverse inference and in a proper case record such failure.
as constituting a serious infirmity in the proof of the prosecution case.
[781 G H; 782 A] In the present case, the prosecution had explained that the two independent eye witnesses were not necessary.
The defence remained content with that explanation and did not ask the other concerned witnesses any questions to elicit why these two persons were considered unnecessary witnesses.
Furthermore, there was nothing in the evidence to suggest that they were not produced because they would have turned out to be inconvenient witnesses.
It was not therefore possible to say that the prosecution had deliberately withheld these two persons for any oblique motive or that the High Court ought to have drawn an adverse inference.
[782 C D] (iii) The sentence of death on four of the ten appellants must be set aside and the sentence of rigorous life imprisonment substituted therefore.
775 In imposing the sentence of death on four of the appellants the trial court made a distinction between them and the others as three of them were armed with firearms and the fourth with a hatchet.
This reason for imposing the extreme penalty on the four appellants could not be sustained on the evidence as the others were also armed with equally, dangerous weapons.
In the absence of evidence as to who inflicted the fatal blows, the same punishment should have been imposed on all of them.
[783 C D]
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<s>[INST] Summarize the judgementAppeal No. 37 of 1958.
Appeal by special leave from the judgment and order dated September 14, 1956, of the Madras High Court in Writ Appeal No. 64 of 1956, arising out of the judgment and order dated May 1, 1956, of the said High Court in Writ Petition No. 852 of 1955.
G. section Pathak, R. Ganapathy lyer and O. Gopalakrishnan, for the appellant.
A. V. Viswanatha Sastri, J. B. Dadachanji and section N. Andley, for respondent No. 4. 1959.
February 18.
The judgment of Imam and Subba Rao, JJ., was delivered by Subba Rao, J. Sarkar, J., delivered a separate judgment.
SUBBA RAO, J.
This appeal by Special Leave against the judgment of the High Court of Judicature at Madras raises the question of interpretation of section 43A of the (IV of 1939), as amended by the Motor Vehicles (Madras Amendment) Act, 1948 (Mad. XX of 1948), hereinafter referred to as the Act.
On February 19, 1955, the Regional Transport Authority, Tanjore, Madras State, the second respondent herein, called for applications under section 57(2) of the Act for grant of a stage carriage permit on the Saliamangalam Kodavasal route.
The appellant and the fourth respondent, K. M. Shanmugam, Proprietor, K. M. section Transport, Ammapet, Tanjore District, along with others, applied for the grant of the said permit.
The Regional Transport Authority 230 at its meeting held on April 19, 1955, after hearing the representations of the applicants, granted the permit to the appellant.
The fourth respondent and two others preferred appeals against the said order to the Central Road Traffic Board, Madras, the third respondent herein.
The Central Road Traffic, Board by its order dated June 25, 1955, set aside the order of the Regional Transport Authority and granted the permit to the fourth respondent.
The appellant preferred a Revision Petition against that order to the first respondent, the State of Madras, but the first respondent rejected the petition by its order dated October 14, 1955.
Thereafter, the appellant filed a Writ Petition (No. 852 of 1955) in the High Court of Madras under article 226 of the Constitution to quash the orders of the Central Road Traffic Board and the State of Madras.
Rajagopalan, J., of the said High Court by his order dated May 1, 1956, quashed the order of the Government and directed the State Transport Appellate Tribunal which had been constituted in place of the Central Road Traffic Board to dispose of the appeal in accordance with law.
Against the judgment of the learned Judge, the fourth respondent preferred an appeal under the Letters Patent and the Appellate Bench of that High Court, consisting of Rajamannar, C. J., and Ramaswami, J., set aside the order of RajagopaIan, J., and restored the order of the Central Road Traffic Board.
The appellant with special leave filed the present appeal against that judgment of the High Court.
Mr. Pathak, appearing for the appellant, raised before us the following two points: (i) The appeal filed by the fourth respondent against the order of the Regional Transport Authority to the Central Road Traffic Board was barred by limitation and the Board acted illegally in disposing of the appeal without deciding the question of limitation; and (ii) the appellant had the fundamental right to carry on the business of transport subject to reasonable restrictions imposed by law as on the date he applied for a permit or at any rate when the Regional Transport Authority issued the permit to him, and that the Central Road 231 Traffic Board committed an error, evident on the face of the record, in disposing of the appeal in accordance with the new restrictions imposed by law made pending the appeal before it.
Stated as a legal proposition, the contention is that the appellant had acquired a vested right to carry on the business of transport and that the same could not be defeated by a subsequent law made pending the appeal, which was only prospective in character.
The first argument need not detain us, for the learned Counsel, in view of the finding of the High Court that as a matter of fact the appeal to the Central Road Traffic Board was not barred, fairly did not press it before us.
This leaves us with the second and the only argument in the case.
To appreciate the contention it is necessary to set out some more relevant facts: On March 28, 1953, the Government made an order, G. O. Ms. No. 1037 Home, purporting to be under section 43A of the Act.
The material part of that order reads: " (1) That additional buses should not be permitted to ply on existing routes unless there is a clear need for increase in the number of buses plying on a particular route and wasteful competition should be discouraged but healthy competition where there is room should be encouraged and, (2)that the transport authorities while granting stage carriage permits should work up to the minimum of 5 permits with a spare bus for each operator and the issue of permits should be so regulated as not to encourage benamidars on one hand and inefficient operators on the other." On November 15, 1954, in supersession of paragraph 2 of the above order, the Government issued an order, G. O. Ms. No. 3353 Home, to the following effect: " The Governor of Madras hereby directs that each viable stage carriage unit in this State shall consist of not less than 10 buses and that in the matter of grant of stage carriage permits, other things being equal, and with a view to build up such viable units, the following shall be the order of preference 232 (1)Operators with less than 10 buses but nearer the mark of 10.
(2) Operators with 10 and more buses.
(3) Others including new entrants.
The Government also directs that in order to facilitate the amalgamation of existing small units into viable units transfer of permits shall be allowed liberally.
" On June 15, 1955, the Government issued another order, G. O. Ms. No. 1689 Home, whereby the Central Road Traffic Board was informed that pending further orders of Government after re examination of the question of formation of viable units of stage carriages, the orders in para.
(2) of G. O. Ms. No. 1037 Home dated 28th March, 1953, would be in force.
The effect of this order was that the first order was restored pending final orders.
When the Regional Transport Authority issued the permit in favour of the appellant, G. O. Ms. No. 3353 Home dated 15th November, 1954, was in force, and when the Central Road Traffic Board made the order giving the permit to the fourth respondent, G. O. Ms. No. 1689 Home dated 15th June, 1955, was in operation.
Apart from other considerations, the Regional Transport Authority relied upon the former G. O. in preferring the appellant to other applicants, while the Central Road Traffic Board referred to G. O. Ms. No. 1037 Home dated 28th March, 1953, which was restored by the later G. O. in preferring the fourth respondent to the appellant.
We shall give further details of the orders of the Regional Transport Authority and the Appellate Tribunal in the context of another argument, but, for the present, the aforesaid facts would suffice.
It would be convenient at this stage, before entering into the controversial question, to state briefly some of the well established principles relevant to the question raised: (i) A citizen has a fundamental right to ply motor vehicles on public pathways under article 19(1)(g) of the Constitution, and any infringement of that right by the State can be justified only if it falls within the scope of article 19(6) thereof See C. section section 233 Motor Service, Tenkasi vs The State, of Madras (1) and Saghir Ahmad vs The State of U. P. (2); (ii) proceedings before tribunals issuing permits are of quasi judicial in character See C. section section Motor Service, Tenkasi vs The State of Madras (1) and New Prakash Transport Co. Ltd. vs New Suwarna Transport Co. Ltd. (3) ; (iii) a new law which takes away or impairs vested rights acquired under existing laws must be deemed to be intended not to have retrospective operation, unless such law makes it retrospective expressly or by implication See Maxwell on the Interpretation of Statutes, p. 215; Garikapatti Veeraya vs N. Subbiah Chowdhury (4 ) and Seth Gulab Chand vs Kudilal (5); and (iv) the same principle applies to a law made pending an appeal before an appellate Court See P. M. Seshadri vs Province of Madras (6).
So much is not, and cannot, de disputed.
We shall assume that the said principles apply to a law made pending an appeal against an order of a quasi judicial tribunal.
The main controversy centres round the fact whether the orders made and the directions issued by the State Government under section 43A of the Act are " laws " as to attract the operation of the aforesaid principles.
While Mr. Pathak says that the said directions are as much laws as those of the provisions of a statute or rules made thereunder, Mr. A. Viswanatha Sastri contends that, having regard to the scheme of the and the different sections of the Act vesting powers in the State Government with regard to different matters dealt with by the Act, the power conferred on the State Government under section 43A is a power to make orders or issue directions in respect of administrative matters regulating the relationship between the State Government and the Transport Authorities and that such orders do not affect the legality or the validity of judicial acts of the said authorities.
To appreciate the rival contentions, it is necessary to consider the relevant provisions of the Act.
(1) I.L.R. , 330, 334.(2) [1955] 1 S.C.R. 707, 719.
(3) , 118.(4) ; , 515.
(5) ; , 322.(6) A.I.R 1954 Mad.
30 234 The Act, which is a Central Act, was passed in the year 1939 and subsequently it was amended from time to time both by Parliament and also by the local legislatures.
The main object of the Act is to regulate the motor traffic in every provisions relating to licensing of drivers of motor vehicles.
Chapter III prescribes for the registration of motor vehicles.
Chapter IV provides for the control of transport vehicles.
Chapter V lays down the general provisions regarding construction, equipment and maintenance of motor vehicles.
Chapter VI regulates the control of traffic.
Chapter VIII deals with the insurance of motor vehicles against third party risks.
Chapter IX defines the offences, lays down the penalties and prescribes the procedure for detecting offences and enforcing penalties.
Chapter X deals with miscellaneous matters.
Every Chapter contains a specific provision conferring a power on the State Government to make rules for the purpose of carrying into effect the provisions of that Chapter.
To carry out the objects of the Act, the State Government is authorized to create a hierarchy of officers such as the State Transport Authority, the Regional Transport Authority, the Registering Authority, etc.
Such Authorities are entrusted with administrative as well as quasi judicial functions.
Chapter IV with which we are now concerned follows the same pattern.
Its general heading is " Control of Transport Vehicles ".
Section 42 prohibits the owners of transport vehicles from using them in any public place without permits.
Section 43 empowers the State Government to control road transport.
Section 44 enables the State Government to constitute Transport Authorities to exercise and discharge the specified powers and functions.
Under section 44(4) the State Transport Authority is authorized to issue directions to any Regional Transport Authority and the latter shall be guided by such directions.
Sections 46, 47, 48, 57, 60 and 64 prescribe the procedure for issue of permits and also create a hierarchy of Tribunals for hearing of applications and disposal of appeals.
The said procedure is clearly quasi judicial in character and has 235 been held to be so by this Court.
Sections 67 and 68 confer a power on the State Government to make rules to regulate the operation of transport carriages and also to make rules for the purpose of carrying into effect the provisions of this Chapter.
Under the aforesaid provisions and the rules made thereunder, the State Transport Authority is made the administrative head of all the other Transport Authorities functioning in the State, and the Central Road Traffic Board the appellate authority in the hierarchy of Tribunals constituted under the Act.
As the administrative head the State Transport Authority is authorized under section 44(4) of the Act to issue directions to any Regional Transport Authority, who shall be guided by such directions.
As an appellate tribunal the Central Road Traffic Board is empowered to dispose of the appeals preferred against the orders made by the subordinate authorities under the Act in respect of specified matters.
But the Central Act did not make any provision enabling the State Governments to control either the quasi judicial or the administrative wings of the machinery provided under the Act.
While the State Transport Authority could issue directions to other Transport Authorities constituted under the Act, a State Government could not likewise issue any directions either to the State Transport Authority or to its subordinate authorities.
So too, while the Central Road Traffic Board could in its appellate jurisdiction set aside or modify the orders of the subordinate tribunals, the State Government was not in a position to set aside the improper orders of the tribunals under the Act.
Presumably, therefore, to bring the said authorities under its control, both on the judicial and the administrative wings, Motor Vehicles (Madras Amendment) Act, 1948 ((Mad. XX of 1948), was passed and it became law on December 21, 1948.
Among other amendments, sections 43A and 64A were inserted in the Act.
Section 43A reads: " The State Government may issue such orders and directions of a general character as it may consider necessary,, in respect of any matter relating to road transport, to the State Transport Authority or 236 a Regional Transport Authority; and such Transport Authority shall give effect to all such orders and directions." Section 64A is to the following effect: " The State Government may, on its own motion or on application made to it, call for the records of any order passed or proceeding taken under this Chapter by any authority or officer subordinate to it, for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceeding and after examining such records, may pass such orders in reference thereto as it thinks fit." So far as section 64A is concerned, in express terms it confers a judicial power on the State Government to keep a subordinate judicial tribunal within bounds.
Section 64A, along with sections 45 to 57, 60 and 64, forms a complete code in respect of the quasi judicial disposals of the issue of permits.
The permits should be issued in accordance with the provisions of the Act and the rules framed thereunder following the judicial procedure.
The words used in section 43A are very wide.
It says that the State Government may issue orders and directions of a general character in respect of any matters relating to road transport.
Divorced from the context and the setting in which the new section appears, it may comprehend any orders or directions of a general character in respect of road transport; and, if so construed, it would not only subvert the other provisions of the Act but also would be vulnerable to attack on the ground of constitutional invalidity.
It would entrust the Government with a naked arbitrary power capable of being used to compel quasi judicial tribunals to dispose of cases in a particular way; it would enable them to couch the order in a general way to induce a tribunal to come to a particular decision in a given case; and it would be destructive of the entire judicial procedure envisaged by the Act and the rules framed thereunder in the matter of disposal of specified questions.
It would be attributing to the legislature an incongruity, for the State Government could issue directions in respect of which it could make rules ignoring the safeguards provided in the 237 making of the rules.
Section 133 lays down that every power to make rules given by the Act is subject to the condition of the rules being made after previous publication.
It also enjoins on the Central and the State Governments to place the said rules for not less than fourteen days before the appropriate legislature and the rules so made shall be subject to such modification as the legislature may make in such session in which they are so laid.
All these salutary precautions can be ignored if the directions given under section 43A are given the status of law; on the other hand, if a restrictive meaning is given as it should be in the context, there would be a happy correlation of the functions of the various bodies under the Act, including the Government.
The Government 's legislative power is recognised under sections 67 and 68 of the Act; its judicial power is maintained under section 64A and its administrative power is affirmed under section 43A.
Chapter IV and the rules made thereunder confer adminis trative powers on the Regional Transport Authorities and the State Transport Authority.
Section 43A enables the State Government to make orders and issue directions of a general character in respect of those functions to implement the provisions of the Act and the rules made thereunder; and the said authorities shall give effect to all such orders and directions.
The context in which and the setting wherein the section is inserted also lend support to the said conclusion.
Section 42 describes the necessity for permits and section 43 confers specific powers on the Government to control road transport.
Section 43A coming thereafter and before the sections conferring quasi judicial powers on tribunals is indicative of the fact that the jurisdiction conferred under section 43A is confined to administrative functions of the Government and the tribunals rather than to their judicial functions; for, if the section was intended to confer legislative power, it should have found its place after section 64A or somewhere near the end of the Chapter.
Though it is not a conclusive test, the placing of the provisions of sections 43A and 64A, which were inserted by the same Amending Act is also a pointer to the intention of the 238 legislature, namely, that section 43A was intended to govern administrative functions of the tribunals.
The terms of the section and the manner of issuing orders and directions thereunder also support the same conclusion.
The legislature used two words in the section: (i) order and (ii) directions.
Whenever it intended to affect the rights of parties, it used the word " rules ", but in this section it designedly used the words appropriate to the control of administrative machinery.
The words " directions and order " are defined in one of the Law Lexicons thus: " Direction contains most of instruction in it; order most of authority.
Directions should be followed; orders obeyed.
It is necessary to direct those who are unable to act for themselves; it is necessary to order those whose business it is to execute the orders. " The said meaning of the words is more appropriate to administrative control rather than to rules of law affecting rights of parties.
Further, the declaration in the section that the orders and the directions under the section shall be binding on the authorities concerned is indicative of the fact that they are not laws, for if they are laws, no such declaration is necessary.
What is more, they need not even be published and may, if the Government so desires, take the form of secret communication to the authorities concerned.
Nor is there any basis for the argument that as the directions are issued under a statutory power, they are " laws ".
The source of the power does not affect the character of the things done in exercise of that power.
Whether it is a law or an administrative direction depends upon the character or nature of the orders or directions authorized to be issued in exercise of the power conferred.
That should be determined on other considerations adverted to by us already.
Our view is in accord with that expressed by a Division Bench of the Madras High Court in C. section section Motor Service, Tenkasi vs The State of Madras (1).
There the constitutional validity of sections 42, 43A, 47, 48 and 64A of the Act was questioned.
In dealing with section 43A, Venkatarama Ayyar, J., who delivered the judgment of the Court, observed at p. 335 thus (1) I.L.R. , 330, 334. 239 "Coming next to section 43A, it is argued that it confers on the Provincial Government wide and unlimited powers to issue all such orders and directions of a general character as they may consider necessary, that the transport authorities are bound under that section to give effect to such orders and directions, that there is nothing to prevent the Government from even issuing directions with reference to the judicial functions which those authorities have to dis charge under the Act, that it could not be expected that such directions would be disregarded by those authorities and that in practice the provisions of section 47 could be evaded.
Reference is also made to the fact that this section was introduced for nullifying the effect of the decision in Sri Rama Vilas Service Ltd. vs The Road Traffic Board, Madras (1) where it was held that the transport authorities had failed in the discharge of their judicial function in meekly giving effect to an order of the Government which was opposed to the provisions of the Act.
Section 43 A appears to be intended to clothe the Government with authority to issue directions of an administrative character and in that view it would be valid.
No specific order or direction of the Government is attacked in these proceedings as invalid and the discussion is largely academic.
The section must itself be held to be valid though particular orders passed thereunder might be open to challenge as unconstitutional.
" From the aforesaid observations, it is manifest that the learned Judge construed section 43A as conferring a power on the State Government to issue directions of an administrative character.
If the construction was otherwise, the learned Judge would have held that the section was constitutionally bad as he had held in regard to other sections.
The High Court of Andhra Pradesh in Gopalakrishna Motor Transport Co. Ltd. vs Secretary, Regional Transport Authority, Krishna District, Vijayawada (2) had also considered the scope of the provisions of section 43A.
There, the State Government issued an order under section 43A of the Act prescribing the manner of checking a bus for over (1) (2) loading.
The procedure prescribed was not followed by the Regional Transport Authority, which was empowered to suspend the permit on the ground of overloading under section 60 of the Act.
One of the contentions raised was that as the mandatory direction given by s the State Government under section 43A was not followed, the Regional Transport Authority in exercising its powers under section 60 should have held that there was no over loading.
In rejecting this plea, the High Court observed at p. 885 thus: " Government has power to frame rules and also to issue administrative directions of a general character under Section 43 A of the Act. . .
In so far as the order was couched in mandatory terms, it is incumbent upon the officers concerned to comply with it.
Any instruction given under Section 43 A cannot override the discretionary power conferred upon the Transport Authority under section 60. .
We, therefore, hold that the order of the Government contained only administrative instructions issued under Section 43 A.
It is true that some of the, administrative instructions impose a mandatory duty on the officers concerned and if they do not discharge their duty, Government may take disciplinary action against them.
But, in our view, non compliance with those directions cannot affect the finding the Authority arrived at on other material on the question of over loading.
" In the present case, the learned Chief Justice, who was a party to the decision in C. section section Motor Service vs The State of Madras (1), presumably on the basis of that judgment observed thus: " In our opinion, these Government orders, which are in the nature of general administrative directions to the transport authorities, do not vest any rights, indefeasible rights in any applicant for a stage carriage permit ".
The result of the discussion may be summarised thus: The appellant had a fundamental right to carry (1) I.L.R. , 334.
241 on his motor transport business subject to reasonable restrictions imposed upon that right by law.
Some of the provisions of Chapter IV of the Act contain reasonable restrictions on the said right.
He was given a permit on the basis of the law imposing the said restrictions on his right.
The orders made and the directions issued under section 43A could cover only the administrative field of the officers concerned and therefore any direction issued thereunder was not law regulating the rights of the parties.
The order made and the directions issued under section 43A of the Act cannot obviously add to the considerations prescribed under section 47 on the basis of which the tribunal is empowered to issue or refuse permit, as the case may be.
There was, therefore, no change in the law pending the appeal so as to affect the appellant 's vested right in this view, the appellant cannot question the validity of the order of the Central Road Traffic Board on the ground that it decided the appeal on a law that was made subsequent to the issue of the permit to him.
The same result could be arrived at by different process of reasoning.
The appellant had a fundamental right to carry on the business of motor transport subject to reasonable restrictions imposed by law under article 19(6) of the Constitution.
The Act imposed reasonable restrictions oil the said right.
One such restriction was that the State Government may issue such orders and directions of a general character as it ' may consider necessary in respect of any matter relating to road transport to the State Transport Authority.
When the appellant applied for a permit, be must be deemed to have bad the knowledge of the fact that his application would be disposed of by the State Transport Authority in accordance with orders and directions of a general character issued, by the State Government.
The directions were not now law that came into existence pending the appeal, but only issued under a law that was in existence even at the time he applied for a permit.
The law was that embodied in section 43A of the Act, namely, that the Government could issue directions binding on the authorities 31 242 concerned and that law was a pre existing one and the application had to be disposed of subject to that law till it was finally terminated by an order of the highest tribunal in the hierarchy.
In this view also there are no merits in the appellant 's contention.
Now coming to the merits of the case, the contentions of the parties may be stated thus: The learned Counsel for the respondents contends that there is no material difference between G. O. Ms. No. 1037 and G. O. Ms. No. 3353, except in regard to one circumstance, which is not material for the present purpose: while in the former G. O., the argument proceeds, the transport authority is directed to work up to a minimum of five units with a spare bus, under the latter G. O., the viable unit fixed is not less than ten buses and the authority concerned is directed to work up to that limit.
It is pointed out that the only difference, is in the measure of a viable unit and that the fourth respondent 's case falls squarely within the first category in the order of preference prescribed in G. O. Ms. No. 3353 of 1954.
The learned Counsel for the appellant contends that the order of preference is based upon the achievement of the object, namely, building up of viable units of ten permits and that the appellant admittedly had only four permits and, therefore, far below the viable unit and he could not be given preference in a competition between him and the appellant, who had more than thirty permits.
The problem presented can only be solved by a reasonable inter pretation of the plain words used in G. O. Ms. No. 3353 of 1954 read along with the expressed object sought to be achieved thereby.
It will be convenient at this stage to read the said order omitting the unnecessary words: G. O. Ms. No. 3353 Home dated 15th November, 1954.
" The Planning Commission has made the following recommendation in respect of Road Transport service : 'It is desirable for the existing private operators ' units to amalgamate, wherever possible, into big viable units to enable them to achieve better returns and maintain better standards of operation 243 The Government considered that it will be in the interests of the public if road transport services are conducted by operators having at least toil stage carriages and they have therefore decided that each viable unit should consist of at least ten stage carriages.
In exercise of the powers conferred by Section 43 A of the (Central Act IV of 1939), and in supersession of the orders issued in paragraph (ii) of G. O. Ms. 1037, Home dated 28th March 1953, the Governor of Madras hereby directs that each viable stage carriage unit in this State shall consist of not less than 10 buses and that in the matter of grant of stage carriage permits, other things being equal, and that with a view to build up such viable units, the following shall be the order of preference 1.
Operators with less than 10 buses, but nearer the mark of ten. 2.
Operators with 10 and more buses.
Others including new entrants.
The Governor also directs that in order to facilitate the amalgamation of existing small units into viable units transfer of permits shall be allowed liberally." The G. O., Was issued to achieve the object of inducing the operators to amalgamate wherever possible, into big viable units to enable them to achieved better returns and maintain better standards of operation.
The Government decided that a unit of at least ten buses would be necessary to achieve that object.
To implement that policy, it directed that each viable stage carriage unit should consist of not less than ten buses and with a view to build up such viable units, it directed that, other things being equal, the order of preference contained therein should be followed.
The order of preference contained three categories, one ex cluding the other.
They did not provide for any rules of preference inter se of operators coming within each one of the categories.
Presumably, that was left to be decided by the transport authorities, having regard to the considerations mentioned in section 47.
The argument 244 of the learned Counsel for the fourth respondent is based upon the first category, which reads: " Operators with less than 10 buses but nearer the mark of 10 ".
He contends that, having regard to the object of the G. O., namely, to build up a viable stage carriage unit of ten, in the absence of an operator with stage carriages nearer to the mark of ten than the fourth respondent, he is entitled to a permit in preference to the appellant provided other things are equal between them.
In respect of this argument, emphasis is laid upon the word "nearer " and it is said that the said word indicates a rule of preference between operators coming within that category, namely, that an operator like the fourth respondent is to be preferred, if there is no other operator nearer than him to the mark of ten.
This argument is attractive, but, in our view, it is inconsistent with the scheme of the order.
It is true that the phraseology of category (1) has not been happily worded and perhaps grammatically not correct.
But the intention is fairly obvious.
For one thing the rule of preference is based upon the achievement of the object, i.e., the building up of a viable unit of ten permits, for the other, the rule of preference is only to govern the three categories mentioned therein and not inter se between those falling in each category.
The word " others " in category (3) becomes meaningless, if operators far below the mark of ten permits fall within the first category.
The more reasonable interpretation and that is in accord with the intention of the State Government is that other things being equal, in a competition between the three categories of operators mentioned in the order, operators nearer the mark of ten shall be preferred.
In the absence of any such operator, operators with ten or more buses should be given the second preference.
In the absence of such operators, others, i. e., operators who are not nearer the mark of ten and new entrants, will have to be preferred.
This rule of preference was not expected to cause any injustice as the restriction on the transfer of permits was removed and the small operators were permitted to amalgamate the existing units into viable units.
245 This policy did not achieve the expected results, but encouraged monopolies; with the result that the Government had to cancel the order of June 15,1955, within about six months from the making of it; but that circumstance does not affect the construction of the clause.
We, therefore, hold that on a strict inter pretation of the G. O. Ms. No. 3353 of 1954, the fourth respondent would not have been entitled to the permit.
But as we have held that the said order was not law but was only an administrative direction, it could not affect the validity of the order of the Central Road Traffic Board, if it made the order, having regard to the consideration laid down in section 47 of the Act.
The main consideration under section 47 of the Act is that the Regional Transport Authority shall, in deciding whether to grant or refuse such carriage permit, have regard to the interest of the public generally.
The Central Road Traffic Board, after having found that the appellant had other advantages such as he operated a three route permit touching the route under appeal, that his record was satisfactory and that he was not inefficient, came to the conclusion that by giving the permit to the fourth respondent, it would be encouraging not only healthy competition but also would be enabling him to work out to the minimum of five permits.
It is true that if the 1954 order should govern the selection, the main reason given by the Board would be wrong.
Whether a small unit or a large unit would be viable or would be in the interest of the public is always a debatable point and it is possible to take conflicting views on the question.
One view is that ail operator who is described as fleet owner will have considerable experience in the business and will be in a position to keep a workshop and additional buses to meet any emergency and therefore he would be in a better position to operate the service without break and keep up the timings in the interest of the public than a stray bus operator.
The alternative view is that encouragement of large viable units will tend to monopoly and the freedom from competition will bring about deterioration in service.
Oil the other hand, new entrants and operators 246 Owning a few buses will incentive to bestow greater attention to tile public needs, particularly in view of the competition from others in the same field.
That both views are possible is evident from the fact that the State Government has been changing its views so often on the subject; and indeed the cancellation of G. O. Ms. No. 3353 of 1954, within six months from the date of its issue, presumably on the basis of the experience gained during that period, is a clear indication that in the opinion of the, Government, encouragement of large units was not in the interest of public.
If that be so, one cannot say that the Central Road Traffic Board acted without jurisdiction when it accepted the view that the smaller units would be more in the interest of the public rather than larger units ; nor the fact that it accepted the prevailing view of the Government on the subject would make it any the less an order within its jurisdiction, provided the said view was germane to one or other matters stated in section 47 of the Act.
As pointed out by us, both the views are possible and the Board was well within its rights in holding that the public interest would be served if the permit was given to the fourth respondent, in the circumstances of the case.
In this view, no other question arises for consideration.
The order of the Madras High Court is correct and the appeal is dismissed with costs.
SARKAR, J.
The appellant before us is a company operating public motor bus services in the State of Madras.
Its grievance is that it has been wrongly refused a permit to run a bus.
Motor bus services transporting passengers on the public highways for consideration, called stage carriage services, are controlled by sections 42 to 68 contained in Chapter IV of the .
The Act provides that no vehicle can be used as a stage carriage save in accordance with a permit granted by a regional Transport Authority set up by the State Government.
Section 47 of the Act lays down certain matters to which a Regional Transport Authority shall have regard in deciding whether to grant or refuse a 247 stage carriage permit, one of which is the interest of the public generally.
Section 68 of the Act authorises the State Government to make rules for the purpose of carrying into effect the provisions of Chapter IV.
The rules framed under this section do not contain anything to guide the Regional Transport Authority in the matter of granting the permits save that r. 150 provides that it " shall in all matters be subject to the orders of the Government and shall give effect to all orders passed by the Government whether on appeal or otherwise.
" Section 43 A of the Act however gives the State Government power to issue orders and directions to the Regional Transport Authority.
That sec tion is in these terms " The State Government may issue such orders and directions of a general character as it may consider necessary, in respect of any matter relating to road transport, to the State Transport Authority or a Regional Transport Authority; and such Transport Authority shall give effect to all such orders and directions.
" We are not concerned with the State Transport Authority in this case.
The Act is a Central Act and section 43 A was introduced into it by an amendment made by the legislature of the Province of Madras.
The Government of Madras from time to time issued orders under this section providing certain considerations for the guidance of the Regional Transport Authorities in deciding applications for the rant of permits for stage carriages.
The appellant 's contention is that the permit was refused to it by applying one of these orders which was not applicable to its case.
Section 64 of the Act permits an appeal to an appellate authority from an order of a Regional Transport Authority refusing to grant a permit.
This appellate authority in the State of Madras is called the Central Road Traffic Board.
Section 64 A which again was introduced into the Act by an amendment of the legislature of the Province of Madras, empowers the Government to look into the records of any case concerning the grant of a permit and pass such order as it thought fit.
Now as to the facts of this case, on March 28, 1953, 248 the Government issued an order tinder section 43 A marked G. O. Ms. No. 1037 laying down certain considerations to be observed in granting permits.
On November 15, 1954, the Government issued another order marked G. O. Ms. No. 3353 superseding the second of G. O. Ms. No. 1037 and substituting fresh provisions in its place.
As I do not consider it necessary to discuss the terms of these orders, it will tend to clarity to proceed on the basis as if G. O. Ms. No. 3353 superseded G. O. Ms. No. 1037 wholly.
The appellant, the respondent No. 4 and eight other persons had applied for the permit for a route for which applications had been invited.
It does not appear from the record when these applications had been made, but it appears that on April 9, 1955, the Regional Transport Authority after hearing all the competing applicants granted the permit to the appellant applying G. O. Ms. No. 3353, this being the order then in force.
Soon thereafter, namely, on May 20, 1955, the Government passed under the same section a fresh order being ( 'J. O. Ms. No. 1403 cancelling G. O. Ms. No. 3353 and on June 15, 1955, it passed another order being G. O. Ms. No. 1689 which, for the purpose of this case it may be said, had the effect of restoring G. O. Ms. No. 1037.
On or about June 23, 1955, the respondent No. 4, who will be referred to as the respondent as he is the only contesting respondent, preferred an appeal to the Central Road Traffic Board against the decision of the Regional Transport Authority.
It may be that some of the other disappointed applicants for the permit also preferred similar appeals but with them we are not concerned.
The Board considered the representations of all the parties before it and made an order on June 25, 1955, setting aside the decision of the Regional Transport Authority and granting the permit to the respondent.
According to the appellant, in making this order the Board followed G. O. Ms. No. 1037.
The complaint of the appellant is that the Board went wrong in doing so as G. O. Ms. No. 1037 was not in force when the appellant 's application was considered by the Regional Transport Authority but had been brought into force subsequently, and as the Board was only hearing an appeal from the Regional Transport Authority it was bound to decide the case according to the order in force when the Regional Transport Authority made its decision and was not entitled to decide it according to an order which came into existence subsequently.
The appellant took the matter up to the Government under section 64 A of the Act but the Government refused to interfere.
The appellant then moved the High Court at Madras for a writ of certiorari quashing the orders of the Board granting the permit to the respondent and of the Government refusing to interfere.
Rajagopalan, J., who heard the application, thought that the Government had failed to exercise its jurisdiction by not deciding a point raised before it, namely, whether the appeal to the Board had been made within the prescribed time.
He, therefore, set aside the order of the Government and sent the case back for reconsideration.
The respondent went up in appeal from the order of Rajagopalan, J.
The appeal was heard by a bench of the same High Court consisting of Rajamannar, C. J., and Ramaswami, J., and was allowed.
The learned Chief Justice who delivered the judgment of the court, held that Rajagopalan, J., was not right in thinking that the Government had failed to decide whether the appeal to the Board had been filed by the respondent within the prescribed time.
He rejected the contention of the appellant that the order of the Board was liable to be set aside inasmuch as it had been made pursuant to G. O. Ms. No. 1037 which was not the order in force when the Regional Transport Authority heard the matter.
He observed, " these Government orders, which are in the nature of general administrative directions to the transport authorities, do not vest any rights, indefeasible rights in any applicant for a stage carriage permit ".
He also held, " It cannot be said that because on the date of the disposal of the application by the Regional Transport Authority a particular G. O. was in force, any one had a vested 32 250 right conferred on him by that G. O.
We think that it was permissible to the Central Road Traffic Board to decide between the claimants on the basis of the G.O. which was in force at the time the appeal was being heard.
" The appellant has now come to this Court by special leave in appeal against this judgment.
Only one point has been argued by Mr. Pathak appearing in support of the appeal.
He said that the Board was a quasi judicial tribunal and an order made by it is therefore liable to be quashed by a writ of certiorari if that order discloses an error apparent on the face of it.
He then said that the order of the Board of June 25, 1955, was erroneous in law as it decided the case by the terms of G. O. Ms. No. 1037, which was brought into force after the date of the decision of the Regional Transport Authority and bad not been given a retrospective operation, and the Board which was hearing an appeal from the Regional Transport Authority, could only decide whether that Authority had gone wrong in the application of the provisions in force at the time of the hearing before it, namely, the provisions contained in G. O. Ms. No. 3353.
He also said that such error was apparent on the face of the record as the Board in its decision stated that it was deciding the case by G. O. Ms. No. 1037.
It has not been contended before us that the Board is not a quasi judicial Tribunal.
It clearly is so.
In view of the many decisions of this Court in similar matters it would be impossible to take a contrary view.
Then again it is a principle firmly established and accepted by this Court that a writ of certiorari can issue where the decision of a tribunal discloses an error of law apparent on its face.
I am also clear in my mind that if it was an error for the Board to have followed G. O. Ms. No. 1037, such error appeared on the face of its decisions for it expressly purported to be guided by G. O. Ms. No. 1037.
The only questions that remain are whether this was an error and an apparent error.
These I now proceed to discuss.
It is true that G. O. Ms. No. 1037 which had been 251 superseded by G. O. Ms. No. 3353 on November 15, 1954, was revived by G. O. Ms. No. 1689 issued on June 15, 1955, i.e., after the date of the decision of the Regional Transport Authority given on April 9, 1955, when G. O. Ms. No. 3353 prevailed.
I will assume now that G. O. Ms. No. 1689 did not bring back G. O. Ms. No. 1037 with retrospective force.
Was the Board then wrong in a plying G. O. Ms. No. 1037 when it decided the appeal from the Regional Transport Authority 's decision ? I do not think so.
It may be that when one regular and ordinary court bears an appeal from the decision of another such court, it cannot, generally speaking, take into consideration a law which has been passed since that decision.
But it is far from clear that the same rule applies when an appeal from the order of a quasi judicial tribunal is heard by another such tribunal, as is the case here.
No authority to warrant such a proposition was cited and as at present advised, I am not prepared to assent to it.
In any case, it can safely be said, and it is enough for the purpose of this case to do so, that it is far from clear that a quasi judicial tribunal like the one before us is not entitled in hearing appeal from another such tribunal to apply a rule which has come into existence since the decision under appeal.
If it is not so clear there of course is no error apparent on the face of the record.
It cannot be overlooked that such a tribunal is not enforcing a vested right which one party has against another or others.
The tribunal is to choose from amongst a number of persons the fittest to be granted a permit.
The overriding interest in the selection is of one who is not a party to the proceedings, namely, the travelling public.
The lower tribunal is entitled to be heard on an appeal under section 64, a procedure which is wholly inapplicable in appeals from the decisions of what are called courts of law.
As a general rule, a court gives effect at the trial to the substantive rights of the parties existing at the date of the writ and it is for this reason that a change in the law cannot ordinarily be taken into account in appeals.
Now such a consideration does not prevail in the 252 present case.
It is not said that a person when he makes an application for a permit acquires a right to have his application decided by the order under the section then in force.
All that is said is that the Transport Authority must consider the applications according to the order in force at the time it hears them.
If this is so, as I think it is, then the basis for saying that the appellate authority cannot consider a Government order issued since the order under appeal was made, completely disappears.
Another reason given for the view that a court of appeal cannot take into consideration a new law is that, " a matter of substantive right which has become res judicata cannot be upset by a subsequent general change of the law": see Re a Debtor, Exparte Debtor (1).
Now it does not seem to me possible to say that an applicant for a permit has a substantive right to the permit vested in him.
Nor is it possible to conceive of the decision of a Regional Transport Authority in granting or refusing to grant a permit as having any operation by way of res judicata.
It therefore seems to me that there is no warrant for applying the general rule applicable to a court of law hearing an appeal from a similar subordinate court which prevents it from taking notice of a new law, to tribunals such as those with which this case is concerned.
I wish to add one thing more on this subject.
Even in the case of appeals strictly so called, the court hearing the appeal may take cognisance of new laws which are made applicable to pending cases: see Quilter vs Mapleson (2).
I have so long been proceeding on the assumption that G. O. Ms. No. 1689 had no retrospective effect at all.
Now it seems to me that there is at least grave doubt if G. O. Ms. No. 1689 which revived G. O. Ms. No. 1037, was not intended to be applied to pending appeals.
It was directed only to the Central Road Traffic Board which heard appeals, and this would indicate that it was intended that the Board would follow it in deciding the appeals that were then pending before it.
It is not therefore clear that G. O. Ms. No. 1689 was not intended to (1) , 243.
(2) 253 have at least this retrospective effect.
If it did, which on the form of the order it may well be said to have done, then that would be another reason for saying that it is not clear that the Board was in error in applying it.
In my view therefore it has not been shown that the Board committed an error apparent on the face of its decision in applying G. O. Ms. No. 1037 to the appellant 's case.
This appeal must therefore fail.
Before leaving the case I wish to express my opinion on a matter which was pressed on behalf of the respondent.
It was said that only administrative orders could be made under section 43 A which orders were not laws, and therefore an error with regard to them would not be an error of law which would warrant the issue of a certiorari.
I am unable to assent to this contention.
To my mind the question is not solved by describing the orders as administrative orders, a term as to the meaning of which, I confess, I am not clear.
So it does not seem to me to be necessary to enquire what kind of orders could be issued under section 43 A.
In my view if an order under the section is one to the observance of which a person is entitled, that would be a law, a mistake of which would justify the issue of the writ at his instance.
The whole justification for a writ of certiorari is to prevent, where no other remedy is available, a patent injustice being allowed to stand.
It would be strange if a person was entitled to the observance of a rule and was held not to have a remedy for its breach.
It can make no difference by what name that rule is called.
I wish to read here as a salutary advice to follow, what Pollock C. B. and Martin B. said in The Mayor of Rochester vs The Queen (1) regarding the writ, " Instead of being astute to discover reasons for not applying this great constitutional remedy for error and mis government, we think it our duty to be vigilant to apply it in every case to which, by any reasonable construction, it can be made applicable." The real question thus is whether the applicants for permits were entitled to the observance of the orders (1) ; ,1033; ; 254 with which we are dealing.
I think they clearly were.
The orders were made under a statutory provision.
That itself would make them binding.
Further, the statute expressly says that the " Transport Authority shall give effect to all such orders and directions ".
The statute applies to all; every one is entitled to the benefit of it.
Any person interested has therefore a right to claim that an order passed under the section shall be observed by the Transport Authorities.
The respondent himself made such a claim and has got the benefit of one of these orders.
It was however said that it is true that the Transport Authorities owed a duty to observe the orders but that was a duty they owed to the Government alone and that a breach of this duty only exposed them to disciplinary action by the Government but did not vitiate their decisions.
I find no words in the section so to limit the scope of the duty imposed by it on the Transport Authorities.
The nature of the orders makes it impossible to think that it was intended to visit a breach by disciplinary action only.
These orders lay down principles to be applied in deciding whether a person should or should not be given a permit.
They affect persons materially ; they affect persons ' living .
I find it very difficult to think that the only sanction for such rules can be disciplinary action.
It seems to me abhorrent that judicial bodies should in the discharge of their functions be subjected to disciplinary action.
Then I think it would certainly be a very unusual statute which sets up quasi judicial tribunals with power to affect people materially and binds the tribunals on pain of disciplinary action only to proceed according to rules made under its authority but gives the persons deeply affected by the tribunal 's decision no right to claim that the rules should be observed.
I am unable to hold that the is a statute of this kind.
I ought to refer to the case of Nagendra Nath Bora vs The Commissioner of Hills Division and Appeals, Assam (1).
That was a case concerning a licensing authority for liquor hops.
It was there said that a (1) [1958] S C.R. 1240.
255 breach of certain executive instructions issued to the licensing authority did not amount to error of law.
I think that case is clearly distinguishable.
It dealt with executive instructions and therefore not such as were issued under a statutory power.
There is nothing to show that it was the bounden duty of the tribunal, the licensing authority, to obey these instructions.
Had it not been that a hierachy of appeals had been provided for, it would perhaps have been held in that case that the authority was not a quasi judicial authority at all.
Furthermore, it was held there that no one had an inherent right to a settlement of a liquor shop.
Therefore it seems to me that that case does not help in deciding the effect of the orders issued under section 43 A.
It is interesting to note that it was said in that case referring to the writ of certiorari at p. 412 that, " its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of law which it was meant to administer.
" The words " law which it was meant to administer " are very significant.
The Transport Authorities in the present case were certainly meant to administer the orders issued under section 43 A.
There is one thing more that I wish to observe in this connection.
It may be that an order which it is the bounden duty of the Transport Authority to obey may give it a certain amount of discretion, but that in my view would riot make the order any the less a law.
If the discretion has been duly exercised, there would be no error of law for the law itself gives the discretion.
It would be the bounden duty of the tribunal to observe that law and so if necessary to exercise the discretion given by it.
For the reasons earlier mentioned, however, I agree that the appeal should be dismissed.
Appeal dismissed.
[/INST]The three appeals arose out of disputes relating to the publication of telephone directories of MTNL a Government of India Undertaking.
The MTNL introduced a new concept of "yellow pages ' in telephone directories, and these yellow pages were to contain advertisement under different headings.
The contractor who was to be awarded the contract for printing such directories was to collect the revenue from the advertisements in the yellow pages as well as in the white pages of the telephone directory, supply the same free of cost to the for its subscribers, and pay royalty to the MTNL in connection with printing of such directories.
Tenders for publication of the directories for Delhi and Bombay were invited.
Tender of UIP respondent No. 2 in the Writ Petition and appellant in one of the appeals (CA.No. 91 of 1993) was accepted, and an agreement dated 14th March, 1987 was executed.
UDI, respondent No. 3 to the Writ Petition and appellant in one of the other appeals (CA No. 90, of 1993) was a subsidiary of UIP.
Under the original agreement UIP was to publish directories every year for a period of five years from 1987 to 1991 for Delhi and Bombay separately, pay an amount of Rs. 20.16 crores as royalty to the MTNL, supply the directories free of cost to subscribers.
UIP also furnished a 82 ` performance guarantee for a sum of Rs. one crore, and was also to supply the same number of supplementary directories which were to be published six months after the publication of the annual issue, to be published in November/December every year.
UIP was given the exclusive right for procurement of the advertisements in the yellow pages as well as strips, bold the extra entries in the white pages, the rates to be fixed by the UIP for each issue of the directory, and such rates to be printed for general information.
It was stipulated that if UIP committed default or breach of the agreement or failed in the due performance thereof, the MTNL shall be entitled to recover from the UIP by way of compensation or liquidated damages and amount calculated at the rate of Rs. One lakh for every day or part thereof for the delay beyond the stipulated date.
The MTNL without prejudice to other rights could by notice in writing determine the contract.
UIP defaulted and committed breach of the agreement inasmuch as directories for Delhi were published only for the years 1987 and 1988 and for Bombay only for the year 1987.
For the year 1987, Delhi issue was published after a delay of seven months and Bombay issue after six months, and the Delhi issue of 1988 was published only in August, 1990, a delay of two years.
There was no publication of the directories for Delhi for the years 1989, 1990 and 1991, and in respect of Bombay for the years 1988, 1989, 1990 and 1991.
A supplemental agreement was entered on 26th September, 1991 between UIP, UDI, MTNL and Sterling Computers Limited appellant in one of the appeals (CA.
No. 89 of 1993).
Sterling by this agreement was introduced to carry out the unexecuted portion of the agreement with UIP.
By this supplemental agreement Sterling was to print and publish 13 main issues of Delhi and Bombay directories within a period of seven years including the year 1991 on payment of additional royalty of only Rs. 10 crores to the MTNL over and above the royalty stipulated in the original agreement by the UIP.
Under the agreement dated 14th March, 1987 the royalty which was payable was Rs. 20.16 crores for the period 1987 to 1991, but under the supplemental agreement Sterling was given the contract to publish 13 main issues of the Delhi and Bombay directories upto 1997 and 1998, but for the extended period it had to pay royalty only for an amount of Rs. 10 83 crores.
A Writ Petition was flied questioning the validity and legality of the supplemental agreement on different grounds including the ground of mala fide.
It was contended by the petitioners that under the grab of a supplemental agreement a fresh contract was awarded to Sterling for a fresh period from 1991 to 1997 on fresh terms and conditions to publish the directories every year for Delhi and Bombay without inviting tenders or affording an opportunity to others, to submit tenders so that they may be also considered for award of the said contract.
It was asserted by the petitioners that in the process of entering into the supplemental agree ment the MTNL, which is a public undertaking and a "State ' within the meaning of Article 12 of the constitution, had suffered a loss of more than Rs. 60 crores without any corresponding benefit accruing to the MTNL or to the public in general.
MTNL contested the writ petition, contending that the supplemental agreement was a result of a bona fide commercial decision free from any bias or malice, that the original contract for the years 1987 to 1991 had been awarded to UIP after inviting tenders, but UIP having gone bankrupt, no money could have been realised from it.
The termination of the original contract was no remedy although repeated contraventions and breaches had been committed by the UIP inasmuch as there was no publication of directory for Bombay for the years 1988, 1989, 1990 and 1991 and for Delhi for the years 1989, 1990 and 1991.
In order to salvage Rs. 20.16 crores which was payable to the MTNL under the original agreement dated 14th March, 1987 by the UIP and which had not been paid, a decision was taken by the MTNL to enter into a supplemental agreement and to allow the UIP/UNI/Sterling to publish the thirteen issues of directories, six main issues for Delhi and seven main issues for Bombay upto years 1997 98 apart from the supplementary directories.
The High Court allowed the writ petitions, and came to the conclusion that the supplemental agreement dated 26th September, 1991 cannot be held to be an extension of the original agreement dated 14th March, 1987, and that the supplemental agreement was tainted with malice the object being to provide unjust enrichment to UIP/UDI/Sterling.
In the appeals to this Court, it was contended on behalf of the 84 appellants that the supplemental agreement was entered into by the MTNL taking into consideration the circumstances then existing which had been examined at the highest level and as such a Court should not examine the discretion exercised by the public authority as a court of appeal because the decision to enter into the supplemental agreement also involved a question of policy, and it was pointed out that the contract had been awarded in the year 1987 to UIP on an experimental basis on such terms and conditions on which in past directories had not ever been published, and that the real experiment was as to how the directories ' could be published without incurring any cost by MTNL.
On behalf of the Writ Petitioners it was stated that they were prepared to pay to the MTNL an amount of Rs. 60 crores for the period 1991 to 1997/1998 the period covered by the supplemental agreement for which the UIP/(JDI/Sterling have undertaken to pay only Rs. 10 crores as royalty.
Dismissing the appeals, this court HELD:1.
Ile publication of directories by the MTNL is not just a commercial venture, the primary object is to provide service to the people.
[92F] 2.The norms and procedures prescribed by Government and indicated by Courts have to be more strictly followed while awarding contracts which have along with a commercial element a public purpose.
[92F] 3.The action or the procedure adopted by the authorities which can be held to be a 'State ' within the meaning of Article 12 of the Constitution, while awarding contracts in respect of properties belonging to the state can be judged and tested in the light of Article 14 of the Constitution.
Raman Davaram Shelly vs 7he International Airport Authority of India, ' ; ; M/s. Kasturi Lal Lakshmi Reddy vs The State of Jammu and Kashmir, ; ; Fertilizer Corporation Kamgar Union (Regd) Sindri vs Union of India, ; ; Ram and Shyam Company vs State of Haryana, ; ; Haji T.M. Hasan Rawther vs Kerala Financial Corporation, AIR 1988 SC 157; Mahabir Auto Stores vs Indian Oil Corporation, ; and Kumari Shrilekha Vidyarthi vs State of U.P., , referred to.
[92 H 93 A] 4.
Public authorities, at times It Is said must have the same liberty 85 as they have in framing the policies, even while entering into contracts because many contracts amount to implementation or projection of policies of the Government.
But it cannot be overlooked that unlike policies, contracts are legally binding commitments and they commit the authority which may be held to be a State within the meaning of Article 12 of the Constitution In many cases for years.
That is why the courts have impressed that even in contractual matters the public authority should not have unfettered discretion.
[91G H, 92A] 5.In contracts having commercial elements, some more discretion has to be conceded to the authorities so that they may enter into contracts with persons, keeping an eye on the augmentation of the revenue But even in such matters they have to follow the norms recognised by courts while dealing with public property.
[92B] 6.Under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purposes of taking a decision its to whom the contract is to be awarded and at what terms.
If the decisions have been taken in bone fide manner although not strictly following the norms laid down by the Courts, such decisions are upheld.
[92C] 7.Public authorities are essentially different from those of private persons.
Even while taking decision in respect of commercial transactions a publicauthority must be guided by relevant considerations and not by irrelevant ones.
If such decision is influenced by extraneous considerations which it ought not to have been taken into account the ultimate decision is bound to be vitiated, even if it is established that such decision had been taken without bias.
[102H, 103A] 8.While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the Court is concerned primarily as to whether there has been any infirmity in the 'decision making process '.
By way of judicial review the Court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the state.
Courts have inherent limitations on the scope of any such enquiry.
But the Courts can certainly examine whether "decision making process ' was reasonable, rational, not arbitrary and violative of Article 14 of the Constitution.
[95C E F] 86 Chief Constable of the North Wales Police vs Evans, ; , referred to.
9.In the facts and the circumstances of the instant case, it has to be held that the MTNL has applied the "irrelevant considerations ' doctrine while granting a fresh contract for a period of five years through the supplemental agreement dated 26th September, 1991, because it had failed to take into account considerations which were necessarily relevant ie.
following the rule of inviting tenders while granting the contract for a further period of five years on fresh terms and conditions and had taken into account irrelevant considerations.
[101H, 102A] 10.Philanthropy is no part of the management of an undertaking, while dealing with a contractor entrusted with the execution of a contract. '[102F] 11.The supply of the directories to public in time, was a public service which was being affected by the liberal attitude of the MTNL and due to the condonation of delay on the part of the UIP/UDI.
There was no justification on the part of the MTNL to become benevolent by entering into the supplemental agreement with no apparent benefit to the without inviting fresh tenders from intending persons to perform the some job for the next five years.
[102G] 12.The supplemental agreement is really a fresh agreement with fresh terms and, conditions which has been entered by MTNL without inviting any tender for the same.
It has been entered to benefit the parties who are admittedly defaulters by not publishing directories for Bombay for the years 1988 1991, and for Delhi for the years 1989 1991 although they had collected several crores or Rupees for the advertisements for the directories to be published in the aforesaid years.
[103D E] 13.It is a matter of common experience that whenever applications relating to awarding of contracts are entertained for judicial review of the administrative action, such applications remain pending for months and in some cases for years.
Because of the interim orders passed in such applications, the very execution of the contracts, are kept in abeyance.
The cost of different projects keep on escalating with passage of time apart from the fact that the completion of the project itself Is deferred.
This process not only affects the public exchequer but even the public In general 87 who are deprived of availing the facilities under different projects.
As such, it need not be impressed that while exercising the power of judicial review in connection with contractual obligations, Courts should be conscious of the urgency of the disposal of such matters, otherwise the power which is to be exercised in the interest of the public and for public good in some cases become counter productive by causing injury to the public in general.
[106AB]
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<s>[INST] Summarize the judgementAppeal No. 82 of 1957.
Appeal from the judgment and decree dated April 4, 1955, of the Calcutta High Court in Appeal from Appellate Decree No. 1224 of 1953.
G. section Pathak and D. N. Mukherjee, for the appellant.
H. N. Sanyal, Additional Solicitor General of India and P. K. Chatterjee, for the respondents.
February 10.
The Judgment of the Court was delivered by SHAH, J.
Of the premises relating to which this dispute arises No. 5, Raja Rajkissen Street, Calcutta the respondents are the owners and the appellant was a contractual tenant from June 15, 1917, till June 15, 1947, under three successive tenancies for 10 years each.
Under the first tenancy, the appellant paid rent at the rate of Rs. 84,15,0,per month, under the second tenancy at the rate of Rs. 180 per month 815 and under the third tenancy at the rate of Rs. 225 per month.
The tenancy was in respect of buildings used for manufacturing " tin canisters " and open land.
On September 30, 1946, the Governor of Bengal issued the Calcutta Rent Ordinance, V of 1946, making certain provisions for control of rent of premises in the town of Calcutta.
By section 12 of the Ordinance, it was provided in so far as it is material that notwithstanding, anything contained in the Transfer of Property Act, the Presidency Small Cause Courts Act or the Indian Contract Act, no order or decree for the recovery of possession of any premises shall be made as long as the tenant pays rent to the full extent allowable by the Ordinance and performs the conditions of the tenancy.
By the proviso, the landlord was, notwithstanding the protection granted entitled, if the conditions specified therein were fulfilled, to obtain possession of the premises.
This Ordinance was replaced by Act I of 1947 which contained substantially the same provisions.
By the West Bengal Act V of 1948, the provisions of Ordinance V of 1946 and Act I of 1948, were continued.
Thereafter on December 1, 1948 the West Bengal Premises Rent Control (Temporary Provisions) Act XXXVIII of 1948 was brought into operation and by this Act, the West Bengal Act V of 1948 was repealed, but the protection granted to the tenants was con tinued.
This Act was repealed by the West Bengal Premises Rent Control Act, 1950, and by section 12 of the latter Act protection to tenants, including tenants whose tenancies had expired, against eviction was granted by prohibiting courts from passing decrees or orders for recovery of possession of any premises in favour of landlords.
It was provided by that Act that the landlord shall be entitled to obtain a decree in ejectment, inter alia, where the premises are reasonably required by, him either 1 for the purpose of building or rebuilding or for his own occupation.
By letter dated May 15, 1957, the respondents called upon the appellant.
to vacate and deliver possession on the expiry of the period of tenancy.
Possession was however not delivered by the appellant 816 and he continued to pay the stipulated amount and the same was accepted by the respondents.
In an application under section 9 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, the Controller fixed the standard rent of the premises at Rs. 455 per month.
After the enactment of the West Bengal Premises Rent Control Act, 1950, another application was submitted by the appellant and the standard rent was reduced to Rs. 247,8,0.
On October 10, 1950, the respondents served a notice upon the appellant requiring him " to quit, vacate and deliver possession of the premises occupied ", which the appellant was described as holding as " monthly tenant ", on the expiry of the 31st of Chaitra, 1357 B. section, i.e., April 14, 1951.
The ground for eviction, it was claimed, was that the premises were reasonably required by the landlords for putting up now buildings thereon.
The appellant having failed to vacate the premises, the respondents sued in the Court of Small Causes, Calcutta, for a decree in ejectment.
The Court of Small Causes decreed the suit filed by the respondents.
In appeal to the Special Bench, Court of Small Causes, the decree passed by the court of first instance was reversed.
The appellate court held that by acceptance of rent after determination of the tenancy in June, 1947, the appellant continued to be " a tenant holding over " and as the purpose of the tenancy was manufacturing, it could be determined only by a notice of six months, expiring with the year of tenancy and as no such notice was served, the tenancy was not determined and the suit was liable to fail.
In appeal to the High Court of Judicature at Calcutta, the decree passed by the Special Bench was reversed and the decree passed by the court of first instance was restored.
With certificate of fitness under article 133(1)(c) of the Constitution this appeal is preferred by the appellant against the order of the High Court.
The contractual tenancy in favour of the appellant was determined by efflux of time on June 15, 1947, and since that date there has been between the parties no fresh contractual tenancy.
The respondents were, 817 it appears, anxious to obtain possession of the premises let out to the appellant, but they were unable to obtain assistance of the court in view of the protection afforded to the appellant by the successive rent control Acts.
In the meanwhile, the appellant continued to pay every month amounts equal to the contractual rent, and later the rent declared to be the statutory rent.
Does the acceptance of the amounts paid by the appellant confer upon him the right of a tenant holding over within the meaning of section 116 of the Transfer of Property Act? Section 116 of the Transfer of Property Act in so far as it is material provides that if a lessee of property remains in possession thereof after the determination of the lease granted to him and the lessor accepts rent from the lessee or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year or from month to month according to the purpose for which the property is leased as specified in section 106.
It is, however, well settled that where a con tractual tenancy to which the rent control legislation applies has expired by efflux of time or by determination by notice to quit and the tenant continues in possession of the premises, acceptance of rent from the tenant by the landlord after the expiration or determination of the contractual tenancy will not afford ground for holding that the landlord has assented to a new contractual tenancy.
It was observed by B. K. Mukherjee, J. (as he then was), in Kai Khushroo vs Bai Jerbai (1): " On the determination of a lease, it is the duty of the lessee to deliver up possession of the demised premises to the lessor.
If the lessee or a sub lessee under him continues in possession even after the determination of the lease, the landlord undoubtedly has the right to eject him forthwith; but if he does not, and there is neither assent or dissent on his part to the continuance of occupation of such person, the latter becomes in the language of English law a tenant on sufferance who has no lawful title to (1) , 270,273.
818 the land but holds it merely through the laches of the landlord.
If now the landlord accepts rent from such person or otherwise expresses assent to the continuance of his possession, a new tenancy comes into existence as is contemplated by section 116, Transfer of Property Act, and unless there is an agreement to the contrary, such tenancy would be regarded as one from year to year or from month to month in accordance with the provisions of section 106 of the Act.
" It was further observed ". . . in cases of tenancies relating to dwelling houses to which the Rent Restriction Acts apply, the tenant may enjoy a statutory immunity from eviction even after the lease has expired.
The landlord cannot eject him except on specified grounds mentioned in the Acts themselves.
In such circumstances, acceptance of rent by the landlord from a statutory tenant whose lease has already expired could not be regarded as evidence of a new agreement of tenancy, and it would not be open to such a tenant to urge, by way of defence, in a suit for ejectment brought against him, under the provisions of Rent Restriction Act that by acceptance of rent a fresh tenancy was created which had to be determined by a fresh notice to quit.
" Under the Calcutta Rent Ordinance, 1946, and the subsequent legislation which culminated in the West Bengal Premises Rent Control Act, 1950, in the expression "tenant" was included any person who continued in possession after termination of his tenancy.
Section 12 of the West Bengal Premises Rent Control Act, 1950, expressly protects a tenant whose lease has expired.
By the Rent Restriction Statutes ' at the material time, statutory immunity was granted to the appellant against eviction, and acceptance of the amounts from him which were equivalent to rent after the contractual tenancy had expired or which were fixed as standard rent did not amount to acceptance of rent from a lessee within the meaning of section 116, Transfer of Property Act.
Failure to take action which was consequent upon a statutory prohibition 819 imposed upon the courts and not the result of any voluntary conduct on the part of the appellant did not also amount to " otherwise assenting to the lessee continuing in possession.
" Of course, there is no prohibition against a landlord entering into a fresh contract of tenancy with a tenant whose right of occupation is determined and who remains in occupation by virtue of the statutory immunity.
Apart from art express contract, conduct of the parties may undoubtedly justify an inference that after determination of the contractual tenancy, the landlord had entered into a fresh contract with the tenant, but whether the conduct justifies such an inference must always depend upon the facts of each case.
Occupation of premises by a tenant whose tenancy is determined is by virtue of the protection granted by the statute and not because of any right arising from the contract which is determined.
The statute protects his possession so long as the conditions which justify a lessor in obtaining an order of eviction against him do not exist.
Once the prohibition against the exercise of jurisdiction by the court is removed, the right to obtain possession by the lessor under the ordinary law springs into action and the exercise of.
the lessor 's right to evict the tenant will not unless the statute provides otherwise, be conditioned.
The High Court was in our judgment right in holding that by merely accepting rent from the appellant and by failing to take action against him, the appellant did not acquire the rights of a tenant holding over.
It is true that in the notice dated October 10, 1950, the appellant is described as a " monthly tenant ", but that is not indicative of conduct justifying an inference that a fresh contractual tenancy had come into existence.
Within the meaning of the West Bengal Premises Rent Control Act, 1950, the appellant was a " tenant " and by calling the appellant a tenant the respondents did not evince an intention to treat him as a contractual tenant.
The use of the adjective monthly " also was not indicative of a contractual relation.
The tenancy of the appellant was determined by efflux of time an subsequent occupation by him 820 was not in pursuance of any contract express or implied, but was by virtue of the protection given by the successive statutes.
This occupation did not confer any rights upon the appellant and was not required to be determined by a notice prescribed by is.
106 of the Transfer of Property Act.
In that view of the case, this appeal fails and is dismissed with costs.
Appeal dismissed.
[/INST]The 1st appellant in the first batch of appeals had filed a writ petition in this Court challenging the notices calling upon him to pay the tax of 9 pies per ton on coal including coal despatched outside the State of Madhya Pradesh on two grounds, namely, that the levy of the tax by the Independent Mining Board was invalid at the date of its initial imposition and, 173 therefore, the respondent Sabha which was the successor of the Mining Board could not continue the levy and also that on a proper construction of section 51 of the Act, the levy could not be made.
Another point namely, the increase in the rate of tax from the original 3 pies to the 9 pies per ton at which the tax was demanded was illegal was sought to be canvassed but was not allowed to be argued by the Court as it had not been raised in the petition.
The writ petition was rejected.
The appellant challenged the levy of the tax for the further periods byway of a writ petition before the High Court of Madhya Pradesh on grounds distinct and separate from those which had been rejected by this Court.
The High Court dis missed the writ petition on the ground that it was barred by res judicata by reason of the earlier judgment by this Court.
In the case of the other appellants the High Court held that the matter was also concluded on the authority of the decision of this Court.
The appellants in the first batch of appeals came by special leave and also filed writ petitions challenging the validity of the levy.
Held, that while the general principle of res judicata applies to writ petitions under article 32 and article 226 of the Constitution, in its application to article 32 of the Constitution, the doctrine only regulates the manner in which the fundamental rights could be successfully asserted and does not in any way impair or affect the content of the fundamental rights.
Pandit M.S.M. Sharma vs Dr. Shree Krishna Sinha, [1961] 1 section 0.
R. 96, Raj Lakshmi Dasi vs Banamali Sen, [1953] section C. R. 154 and Daryao vs State of U.P., ; , referred to.
Constructive res judicata was a creature of statute and its application could not be extended to other proceedings particularly those questioning tax liability for different years.
Held, further, that the law declared by the Supreme Court which is binding under article 141 of the Constitution of India is that which has been expressly declared and any implied declaration though binding was subject to revision by this Court when the point was subsequently directly and expressly raised before this Court.
Held, further, that the procedure of assessment of tax authorised by the relevant statutory provisions and the Rules could not be said to be a capricious administrative or executive affair so as to violate article 19(1) (f) of the Constitution.
174 Kunnathat Thathunni Moopil Nair vs State of Kerala, ; , distinguished.
As the Rule which prescribed the maximum rate had itself been deleted it could not be said that there had been a levy in excess of the maximum prescribed.
As neither the Act nor the Rules prescribed a ceiling on the levy, the expression "first impositions occurring in section 51(2) would include every increase of the levy after its initial imposition and the increased levy would require the previous sanction of the Local Government and such sanction not being there, the levy at the rate of 9 pies per ton was illegal.
Considering the nature of the tax and the periods for which it was assessed and in the absence of any provision, the assessment once made by r. 10 was final and there could be no re assessment.
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<s>[INST] Summarize the judgementCivil Appeal No. 1275 of 1979 Appeal by Special leave from the Judgment and Order dated 891 the 27th March, 1979 of the Allahabad High Court in Civil Misc.
Writ No. 1416 of 1977.
Mr. E.C. Agarwala, Advocate for the Appellant.
Mr. J. P. Goyal, Mr. section R. Jain and Mr. Rajesh, for the Respondent.
The Judgment of the Court was delivered by MISRA, J.
The present appeal by special leave against the judgment of the Allahabad High Court dated 27th of March, 1979 centers round a shop No. 270 situate in Grouceganj, Bulandshahr.
This shop was owned by Ratan Lal and Naubat Singh was a tenant of the shop.
Nabuat Singh died on 31st of August, 1974.
He had no male issue but had four daughters, all of whom were married and were residing with their husbands outside Bulandshahr.
He also left behind his widow who was residing in village Rampur, district Bulandshahr.
He was carrying on some business in the disputed shop during his lifetime.
On his death Ratan Lal, the landlord, filed an application under section 12 read with section 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 (for short, referred to hereinafter as 'the U.P. Act No. 13 of 1972 ') for a declaration that the shop was vacant and he required the same for his personal need.
The application was resisted by Jaspal Singh, the present appellant, on the ground that he was the heir of Naubat Singh deceased and was in occupation of the disputed shop; that on 4th of July 1973 Naubat Singh before his death executed a will conveying all his rights and properties including the tenancy rights in the disputed shop to him; that he had been helping Naubat Singh in his business s for the last several years and remained in continuous possession of the disputed shop after the death of Naubat Singh and so he was entitled to get the benefit of s.14 of the U.P. Act No. 13 of 1972.
The Rent Control and Eviction officer rejected the application holding that Jaspal Singh the, appellant, had been living with the deceased Naubat Singh and was also assisting him in doing the business in the disputed premises to the full knowledge of the landlord, and so he was entitled to get the tenancy rights under section 14 of the U.P. Act No. 13 of 1972, as it stood prior to its amendment made by U.P. Act No. 28 of 1976.
892 Feeling aggrieved the landlord preferred a revision before the District Judge, Bulandshahr,, which was transferred to the Additional District Judge, who dismissed the same on 8th of July, 1976.
He, however, did not agree with the finding of the Rent Control and Eviction officer that Jaspal Singh was entitled to the benefit of original section 14 of the U.P. Act No. 13 of 1972 but since even after the death of Naubat Singh, on 31st of August 1974 Jaspal Singh had been permitted to continue in possession of the premises he got the benefit of amended section 14, as amended by U.P. Act No. 28 of 1976.
Undaunted by his failures, the landlord filed a petition under article 226 of the Constitution challenging the orders of the two authorities below.
The High Court endorsed the finding of the Additional District Judge that Jaspal Singh could not get the benefit of the unamended section 14 of the U.P. Act No. 13 of 1972 inasmuch as on the date immediately preceding the commencement of the Act, i.e., on 14th July, 1972 Naubat Singh was very much alive and admittedly he was the tenant of the premises in question and as such no question of regularisation of Jaspal Singh as tenant could arise.
The High Court also held that Jaspal Singh was not even entitled to get the benefit of the amended section 14 as it stood amended by the U.P. Act No.28 of 1976, which came into force on 5th of July, 1976.
According to the High Court the benefit of amended section 14 would be available to Jaspal Singh, the appellant, only when he was living in the premises with the consent of the landlord provided that no proceedings for his eviction were pending.
The landlord, however, in the instant case immediately after the death of Naubat Singh started the proceedings for the release of the premises in 1974.
The High Court took exception to the assumption of the learned Additional District Judge regarding the consent of the landlord.
According to the High Court consent of the landlord cannot be assumed or presumed, it must be proved as a fact but there was no proof of the consent of the landlord.
The High Court alter construing the scheme and the various provisions of the Act also held that the appellant could not be an heir on the basis of the will executed by Naubat Singh nor could Naubat Singh execute any will in respect of the tenancy rights.
On these findings the High Court held the possession of Jaspal Singh to be unauthorised.
Consequently, the High Court allowed the writ petition and quashed the orders of the authorities below and directed the Rent Control and Eviction officer to decide the release application afresh in accordance with the law.
Jaspal Singh has not approached this Court by special leave, and the counsel for the appellant has reiterated the same points before us.
893 The first question which calls for consideration is whether Jaspal Singh, the appellant is entitled to the benefit of the unamended and amended section 14 of the rent Act.
It would be appropriate at this stage to read the old unamended and amended section 14 of the Act.
Section 14 as it stood originally in the U.P. Act No. 13 of 1972 read: "14.
Regularisation of occupation of existing tenants.
Notwithstanding anything contained in and general order made under sub section (2) of section 7 of the old Act, any tenant in occupation of a building with the consent of the landlord immediately before the commencement of this Act, not being a person against whom proceedings under section 7 A of the old Act are pending immediately before such commencement, shall be deemed to be in authorised occupation of such building.
Section 14 of the Act as amended by the U.P. Act No. 28 of 1976 reads: "14.
Regularisation of occupation of existing tenants.
Notwithstanding anything contained in this Act or any other law for the time being in force, any licensee (within the meaning of Section 2 A) or a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent. and Eviction Amendment) Act, 1976 not being a person against whom any suit or proceeding for eviction is pending before any court or authority on the date of such commencement shall be deemed to be an authorised licensee or tenant of such building.
" A bare perusal of section 14 as it stood prior to its amendment in 1976 would indicate that in order to get the benefit of this section a person must satisfy that (1) he was a tenant in occupation of a building with the consent of the landlord immediately before the commencement of this Act and that he was not a person against whom proceedings under section 7A of the old Act are pending immediately before such commencement, i.e., on 14th July, 1972 (date of commencement of the Act being 15 July, 1972).
Admittedly Naubat Singh was the tenant of the shop on the date immediately preceding the commencement of the Act (i.e., 15th July, 1972) and he was alive 894 and therefore no question of Jaspal Singh being regularised as a tenant arises.
In order to attract section 14 as it stood after the amendment in 1979, Jaspal Singh had to prove that he was a licensee or a tenant with the consent of the landlord immediately before the commencement of the U.P. Act No. 28 of 1976 which came into force on 5th July, 1976.
At the relevant time, however, the application for release filed by the landlord against Jaspal Singh was pending in court of Additional District Judge by way of revision petition wherein the landlord Ratan Lal had contested the claim of tenancy by Jaspal Singh.
The appellant, therefore, could not get the benefit of amended 5.
14 as well and the High Court was right in so holding.
This leads us to the next contention that the appellant is a tenant within the meaning of section 3(a) of Act No. 13 of 1972: "3.
In this Act, unless the context otherwise require (a) "tenant" in relation to a building, means a person by whom its rent is payable, and on the tenant 's death (1) in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death; (2) in the case of a non residential building, his heirs:" The appellant would be a tenant within the meaning of section 3 (a) only when he is an heir.
The appellant is not a son but only a nephew of Naubat Singh.
He, however, claims to be an heir on the basis of a will executed by Naubat Singh conveying all his rights and properties including the tenancy rights in respect of the disputed shop in his favour and that he had been helping Naubat Singh in his business for the last several years and continued to remain in possession of the shop even after the death of Naubat Singh.
Accordingly he was entitled to the benefit of section 14.
We have already dealt with the question whether the appellant was entitled to the benefit of section 14 as it stood prior to its amendment in 1976 and also of the amended provisions of section 14 and we have negatived the contention of the appellant.
Therefore, the precise question for consideration would be whether the appellant is an heir within the meaning of section 3(a) on the basis of the will executed in his favour by Naubat Singh.
There seems to be a cleavage of opinion on this point in various High 895 Courts.
The Allahabad High Court in Smt.
Rukmani Devi vs III Addl.
District Judge, Kanpur and Munni Lal vs Smt.
Shiva Devi held that the question as to who are heirs of the deceased tenant, will be decided in accordance with the personal law of the tenant, as this Act does not lay down the list of heirs on whom the tenancy should devolve.
Tn some of the Rent Control Acts list of the heirs has been specified for the purpose of devolution of tenancy on the death of the tenant.
A Division Bench of the Punjab and Haryana High Court in Gulzara Singh vs Smt.
Tej Kaur on the other hand held: "Generally speaking 'heirs ' are those persons whom the law declares to be entitled to the estate of a deceased person, and in common legal parlance the word 'heir ' like the expression 'heir at law ' undoubtedly connotes and is suggestive of a person who succeeds to the estate in case of intestacy under the statutes of succession.
But in common speech this word is also not infrequently used to indicate those who come in any manner to the ownership of any property by reason of the death of the owner or persons upon whom the property devolves on the death of another either by law or by will.
" In other words, it is indicative of persons entitled by will or otherwise to share the estate of the deceased.
It is thus true that technically the word 'heir ' may be distinguish able from the word 'legatee ' but it is also at times used in its more general and comprehensive sense as indicating the person upon whom the property devolves on the death of another and hence when the intent is clear the word 'heir ' may well be treated as equivalent to 'Legatee ' or devised '.
The true scope, effect and significance of this word is, there fore, in all cases a question of intention which has to be determined principally on a consideration of the objection and purpose of the statute in which it is used." Thus, the word 'heir has been construed both in a wider as well as in a narrower sense.
Which sense will be applicable to the facts of a particular case will depend upon the intention and scheme of a particular legislation in which the question occurs.
This will also 896 raise an allied question whether the tenancy rights could be devised by a will.
It will be relevant at this stage to refer to material provisions of the Act.
The word 'family ' has been defined in section 3(g) of the Act: (g) "family" in relation to a landlord or tenant of a building, means, his or her (i) spouse, (ii) male lineal descendants, (iii)such parents, grand parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her, and includes, in relation to a landlord, any female, having a legal right of residence in that building;" Section 11 deals with the prohibition of letting without allotment order.
It reads: "Save as hereinafter provided, no person shall let any building except in pursuance of an allotment order issued under Section 16." Section 12 deals with a deemed vacancy of building in certain cases and reads: "(1) A landlord or a tenant of a building shall be deemed to have ceased to occupy the building or a part thereof (a) he has substantially removed his effects therefrom, or (b) he has allowed it to be occupied by any person who is not a member of his family, or (c) in the case of a residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere.
897 (2) In the case of non residential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building.
" Section 13 provides for restrictions on occupation of building without allotment or release, and reads: "Where a landlord or tenant ceases to occupy a building or part thereof, no person shall occupy it in any capacity on his behalf, or otherwise then under an order of allotment or release under Section 16, and if a person so purports to occupy it, he shall, without prejudice to the provisions of Section 31, be deemed to be an unauthorised occupant of such building or part.
" Section 15 casts an obligation on the landlord or the tenant to intimate vacancy to the District Magistrate.
Section 16 deals with allotment and release of a vacant building.
Section 20 puts a bar of suit for eviction of a tenant except on specified grounds enumerated therein.
From a survey of these provisions it will be clear that if a tenant parts with possession of the premises in his possession, the same would be treated as vacant.
There are restrictions in the case of a residential building that the tenant will live only with the members of his family and after he has allowed the same to be occupied by any person who is not a member of his family, the tenant shall be deemed to have ceased to occupy the building.
In the case of a non residential building, when a tenant is carrying on business in the building, admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building.
If a tenant subjects the premises, he is able to ejectment.
Obviously, therefore, there are restrictions placed by the Act on the right of the tenant to transfer or sublet the tenancy rights and he can keep possession of the building or premises for himself and for the purpose of his family, for his business and for the business of his family members.
He obviously, cannot be allowed to transfer a tenancy right.
A fortiori, the scheme of the Act does not warrant the transfer of the tenancy right to be effective after his lifetime.
Thus, the appellant was neither a tenant of the disputed shop nor he was an heir of Naubat Singh, the 898 original tenant.
Besides, on a plain reading of the will it is evident that the will has been executed in respect of other properties including his business but not in respect of the tenancy rights.
The High Court also recorded a finding to the effect that there was no will in respect of the tenancy rights of the disputed shop.
Having given our anxious consideration to the questions involved in the case we see no reason to differ from the finding of the High Court.
The appeal is accordingly dismissed but in the circumstances of the case the parties are allowed to bear their own costs.
M.L.A. Appeal dismissed.
[/INST]The Central Government as an 'appropriate Government ' referred the Industrial dispute between the Appellant employees ' Association and the first Respondent employer in each of the Appeals under Sec.
10 (1) (d) of the to the Central Government Industrial Tribunal.
A preliminary objection was raised that the CENTRAL Government was not the 'appropriate Government ' in relation to the said industrial disputes and consequently the Central Government had no power under Sec.
10 (l) (d) of the Act to make the five references and that the Tribunal would have no jurisdiction to entertain the same The Appellant Association repelled this objection by contending that the workmen were 'dock workers ' within the meaning of the expression in the and as they were working at Mormugao Port, a major port in the Union Territory of Goa, Daman Diu, the Central Government would be the 'appropriate Government ' in relation to the industrial dispute and consequently the references were valid and competent.
374 The Tribunal held that the workmen covered by the reference who were iron Ore samplers were 'dock workers ' as defined in the and as they were working in a major port, in a Union Territory, the Central Government would be the 'appropriate Government ' for referring the industrial dispute.
The Tribunal over ruled the preliminary objection and set down the references for final hearing.
The first respondent employers filed applications under Article 227 in the High Court which held that the workmen, who were iron ore samplers, were neither comprehended in the expression 'dock workers ' as defined in the .
nor involved in any work connected with or related to a major port.
and were not involved in an industrial dispute concerning a major port and therefore the Central Government was not the appropriate Government ' for referring the industrial dispute.
It further held that the Central Government is not the State Government for the Union Territory of Goa, Daman and Diu under Section 2 (a) (i) of the but it is the Administrator appointed under Article 239 and therefore the Central Government was not the 'appropriate Government ' and had no jurisdiction to make the references.
The rule was made absolute and the references quashed.
Allowing the Appeals to this Court, ^ HELD: 1.
The Central,Government as the 'appropriate Government had made the references The High Court was clearly in error in quashing the references.
The judgment of the High Court is quashed and set aside and the award of the Tribunal on the preliminary point about the competence of the Central Government to make the reference under Section 10(1) of is confirmed.
The tribunal will be at liberty to examine the contention whether iron ore samples are involved in any work connected with or related to a major part or are dock workers and come to its own decision uninfluenced by the view taken by the High Court.
As the dispute is an old one, the Tribunal is to give top priority and dispose of the matter within a period of six months.
[386G; 387D E, C] 2 (i) Indisputable the is a Central Act enacted after the commencement of the and the relevant definitions having been recast to meet the constitutional and statutory requirements the expressions 'Central Government, 'State Government ',and 'Union Territory ' must receive the meaning assigned to each in the unless there is anything repugnant in the subject or context in which it is used.
No. such repugnancy was brought to the notice of the Court.
[384B C] (ii) On a conspectus of the relevant provisions of the Constitution and the Union Territories Act 1963, it clearly transpires that the concept of State Government is foreign to the administration of Union Territory and Article 239 provides that every Union Territory is to be administered by the President.
The President may act through an Administrator appointed by him.
Administrator is thus the delegate of the President.
His position is wholly different from that 375 Of a Governor of a State.
Administrator can differ with his Minister and he must then obtain the orders of the President meaning thereby of the Central A Government.
The Administrator of Union Territory does not therefore qualify for the description of a State Government.
The Central Government is therefore the 'appropriate Government ' [384F G] (iii) The High Court fell into an error in interpreting clause (c) of Section 3 (60) of the which upon its true construction would show that in the Union Territory there is no concept of State Government but wherever the expression 'State Government ' is used in relation to the Union Territory, the Central Government would be the State Government.
The very concept of State Government in relation to Union Territory is obliterated by the definition.
[383D H] Satya Dev Bushahri vs Padam Dev & Ors., ; and the State of Madhya Pradesh v, Shri Moula Bux & Ors. ; , held inapplicable.
(i) The definition of three expression 'Central Government ' (Section 3 (8), 'State Government ' (Section 3 (60)), and Union Territory ' (Section 3 (62A)) in the Would unmistakably show that the framers of the Constitution as also the Parliament in enacting these definitions have clearly retained the distinction between State Government and Administration of Union Territory as provided by the Constitution.
It is especially made clear in the definition of expression 'Central Government ' that in relation to the Administration of a Union Territory the Administrator thereof acting within the scope of the authority given to him under Article 239 of the Constitution.
would be comprehended in the expression 'Central Government.
When this inclusionary part is put in juxtaposition with exclusionary part in the definition of the expression State Government ' which provides that as respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, 1956, it shall mean, in a State, the Governors and in a Union Territory, the Central Government, the difference conceptually speaking between the expression ' State Government ' and the 'Administration of a Union Territory ' clearly emerges There is no room for doubt that the expression Administration of a Union Territory ', Administrator however having been described, would not be comprehended in the expression State Government as used in any enactment These definitions have been modified to bring them to their present form at by the Adaptation of Laws (No.1) Order, 1956.
[386E G] (ii) The High Court clearly fell into an error when it observed that the inclusive definition of the expression 'State Government, does not necessarily enlarge the scope of the expression but may occasionally point to the contrary; [386C]
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<s>[INST] Summarize the judgement: Criminal Appeal No. 76 of 1976.
T. C. Raghavan and N. Sudhakaran for the appellant.
Debabrata Mookerjee and R. N. Sachthey for respondent No. 1.
The Judgment of the Court was delivered by SARKARIA, J.
This appeal by special leave is directed against an order, dated July 1, 1975, of the High Court of Kerala, dismissing 533 the Criminal Revision Petition filed by the appellant.
It raises questions with regard to the scope and interpretation, inter alia, of sections 399 (3) and 484(2) (a) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the New Code).
The facts are these: On February 2, 1971 the Director of Enforcement, New Delhi made a complaint against four accused persons.
alleging the commission of offences under section 120 B, Penal Code and section 5(1) (aa) and B; 5(1) (c) of the Foreign Exchange Regulation Act, 1947 (for short, called the Act) in the Court of the District Magistrate, Ernakulam.
The appellant herein was accused No. 2 in that complaint.
By an application he raised two objections to the maintainability of the complaint and prayed for its dismissal.
First, the opportunity as required under the proviso to section 23 (3) of the Act was not given to the accused for showing that he had permission from the Reserve Bank of India for doing the alleged acts.
Second, that the complainant did not comply with the conditions in the proviso to section 23D (1) of the Act, in as much as there was on additional material before him to come to the conclusion that the penalty which he is empowered to impose under section 23, would not be adequate and that consequently, it was necessary to file a complaint in Court.
Dr By an order dated September 5, 1973, the trial court dismissed the application holding inter alia "that the points raised here will be considered after recording the evidence".
On the same day, against this order dated September 5, 1973, accused No. 2 (P. Philip) filed Cr.
Revision Petition No. 27 of 1973 under section 435 of the Code of Criminal Procedure, 1898 (hereinafter called the old Code) before the Sessions Judge, Ernakulam, who dismissed the same by an order dated August 6, 1974.
Aggrieved by the order of the Sessions Judge, P. Philip preferred Cr. Revision Petition No. 393 of 1974 to the High Court.
This Revision was heard by a Division Bench along with two other Revisions (Cr. Rev. Petns.
Nos. 409 and 411 of 1974) and dismissed, without going into the merits, on the ground that it was not maintainable in view of section 399(3) of the New Code.
Mr. Raghavan, learned Counsel for the appellant contends that the order under appeal is manifestly erroneous because at the time when the revision petition was filed before the Sessions Judge, the old Code was in force, and in view of section 484 of the New Code, it had to be disposed of in accordance with the old Code.
As against this, Mr. D. Mukherji submits that the word "application" in section 484(2) (a) of the Code of 1973 is a word of limited import.
According to the Counsel only those applications which could be finally disposed of by the Sessions Judge would be covered by this word.
Since the revision application, in the instant case proceeds the argument was one for reference to the High Court under section 438 of the Code of 1878, and could not be finally disposed of by the Sessions Judge at his level, it would not be an "application" within the contemplation of section 484(2) (a) of the Code of 1973.
It is pointed out that procedural rights are not vested rights, that whereas a right of 534 appeal is a substantive right, the procedural facility to move in revision does not involve such a right.
On these premises it is maintained that the saving clause in section 484 should be very strictly construed, with the result that the Code of Criminal Procedure, 1973 will govern all revisions which were pending on April 1, 1974 when it came into force.
We are unable to accept the interpretation of section 484(2) (a) of the new Code suggested by the learned Counsel for the respondents.
The language of this provision is clear.
Its material part runs as under.
"(1) The Code of Cr.
Procedure 1898 (V of 1898) is hereby repealed.
(2) Notwithstanding such repeal: (a) If, immediately before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, contained, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1898 (V of 1898) as in force immediately before such commencement . as if this Code has not come into fore. " It will be seen that the word "application" in the saving provision contained in clause (a) of sub section (2) of section 484 immediately follows the term "appeal".
It therefore takes some colour from the collocation of words in which it occurs.
It is synonymous with the term "petition" which means a written statement of material facts, requesting the court to grant the relief or remedy based on those facts.
It is a peculiar mode of seeking redress recognised by law.
Thus considered there can be no doubt that the word "application" as used in clause (a) of section 484 of the Code of 1973 will take in a revision application made under section 435 of the old Code.
Such a revision application does not cease to be an "application" within the purview of the aforesaid clause (a) merely because in the event of the application being allowed, the Sessions Judge was required to make a reference to the High Court under section 438.
Whether such an application is granted or dismissed by the Sessions Judge, he finally disposes of the matter so far as his court is concerned.
May be that a purely interlocutory application in a pending action, which by itself is not an independent mode of seeking redress recognised by law is not covered by the word 'application ' as used in the aforesaid clause (a).
But it is not necessary to express any final opinion on that point because a revision application of the kind before us is not by any recokning, such an interlocutory application.
In the present case, the revision application made by P. Philip was pending before the Sessions Judge when the New Code came into force.
In view of section 484(2) (a) of the New Code, this revision was required to be disposed of in accordance with the provisions of the old Code.
535 The above being the position, the learned Judges of the High Court were clearly in error in holding that in view of section 399(3) of the New Code, the appellant was not competent to maintain a revision in the High Court against the order dated August 6, 1974 of the Sessions Judge.
For these reasons we allow this appeal, set aside the order of the High Court and send the appellant 's revision petition (No. 393 of 1974) back of it for disposal with utmost expedition in accordance with law.
Appeal allowed and R. P. 393/74 remitted.
[/INST]In February, 1971 the Director of Enforcement made a complaint against 4 accused for violation of certain provisions of the Foreign Exchange Regulations Act, read with section 120 B of the Indian Penal Code.
The appellant herein who was accused No. 2 made an application before the Trial Court raising two preliminary objections to the maintainability of the complaint and prayed for its dismissal.
The Trial Court by its judgment dated 5 9 1973 dismissed the application holding that the points raised would be considered after recording the evidence.
The appellant filed a Revision Application to the Sessions Court under section 435 of the Code of Cr.
Procedure 1898, which was dismissed in August, 1974.
The appellant filed a Revision Application to the High Court which was dismissed by the High Court on the ground that it was not maintainable in view of section 399(3) of the new Code.
In an appeal by Special Leave, the appellant contended: At the time when the Revision petition was filed before the Sessions Judge the old Code was in force and in view of section 484 of the new Code the application had to be disposed of in accordance was the old Code.
The respondents on the other hand, contended that the word 'application ' in section 484(2) of the new Code is a word of limited import and that it would include only those applications which could be finally disposed of by the Sessions Judge.
^ HELD: The word 'application ' in the saving provision immediately follows the term 'appeal '.
It, therefore, takes some colour from the collection of words in which it occurs.
It is synonymous with the term 'petition ' which means a written statement of material facts, requesting the Court to grant the relief or remedy based on those facts .
is a peculiar mode of seeking redress recognised by law.
There is no doubt that the word 'application ' as used in clause (a) of section 484 of the new Code will take in a revision application made under section 435 of the old Code.
The Revision Application made by the appellant was pending before the Sessions Judge when the new Code came into force.
Therefore it was required to be disposed of in accordance with the provisions of the old Code.
[534D F, G H]
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<s>[INST] Summarize the judgementCivil Appeal No. 90 of 1973.
From the Judgment and Order dated the 24th and 25th July, 1972 of the Gujarat High Court in Election Petition No. 2 of 1971.
section N. Andley, K. J. John and Shri Narain Mathur for the appellant.
F. section Nariman, P. H. Parekh, Mrs. section Bhandare and Manju Jaitley for respondent No. 1.
The Judgment of the Court was delivered by ALAGIRISWAMI, J.
This appeal arises out of an election petition questioning the election of 1st respondent in the election held in March 1971 to the Lok Sabha from the Banaskantha constituency in Gujarat.
In that election the 1st respondent, a nominee of the Ruling Congress was declared elected securing 1,16,632 votes as against 92,945 votes secured by the 2nd respondent, a nominee of the Organisation Congress.
The appellant, a voter in the constituency, also belonging to the Organisation Congress, filed a petition challenging the validity of the election on various grounds out of which only those covered by issue No. 10, hereinafter set out, survive for consi deration: "(10) Whether respondent No. 1 or his agents or/ other persons with his consent made a gift or promise of gratification to the petitioner with the object directly or indirectly of inducing the petitioner to vote for respondent No. 1 or to refrain from voting for respondent No. 2 ?" The allegation relating to this charge in the election petition is that the 1st respondent and his agent Maulvi Abdur Rehman and the 1st respondent 's son Bipin Popatlal Joshi with the consent of the 1st respondent had made a gift and a promise of gratification to the appellant for voting in 1st respondent 's favour.
The appellant as well as one Madhusudansinhji, who has been examined as P.W. 10, seem to have been at that time prominent members of the Organisation Congress and also leaders of the Kshatriya community which formed 900 about 20 to 25 per cent of the votes in the Banaskantha constituency.
It was alleged that on February 9, 1971 the 1st respondent and Maulvi Abdur Rehman came to the appellant 's residence and persuaded him to leave Congress (O) and join Congress (R) offering (1) to secure a party ticket for the appellant for the election to the Gujarat Legislative Assembly in 1972, (2) to meet all his expenses for that election and to pay him Rs. 10,000/ in cash towards the said expenses, and (3) to construct a hostel for the Kshatriya students of the Banaskantha district.
A specific allegation was made that the 1st respondent wanted the appellant to vote for him.
It was also alleged that the 1st respondent asked the appellant to convey to Madhusudansinhji an offer of a party ticket for the Legislative Assembly election in 1972 and to pay him also a sum of Rs. 10,000/ .
The Prime Minister was addressing a meeting at Palanpur on that day.
The appellant, his wife and Madhusudansinhji were taken to the helipad, Palanpur when the Prime Minister landed there and also to the dais from which the Prime Minister was addressing a public meeting.
One Akbarbhai Chavda, convener of the District Congress Committee announced that the appellant and Madhusudansinhji had joined Congress (R), and asked the appellant to say a few words.
The appellant went to the microphone, took out the bundle of notes of Rs. 10,000/ given to him and flung it in the air and told the gathering that he and his colleagues could not be purchased and that they would remain loyal to the Organisation Congress.
During the trial of the election petition Madhusudansinhji, who had by that time joined the Ruling Congress and Maulvi Abdur Rehman were examined as witnesses on behalf of the appellant.
The learned Judge of the High Court after considering the evidence before him held that Bipin Popatlal Joshi, son of the 1st responident, handed over Rs. 10,000/ to the appellant as a bribe to bring about the appellant 's defection from the Organisation Congress.
But he took the view that the object of the gift was to bring about the appellant 's defection from the Organisation Congress and not induce directly or indirectly any voters to cast their votes for the Ruling Congress candidate or to refrain from voting in favour of the 2nd respondent.
As regards the offer to build the hostel for Kshatriya students he held that the fact that a person who defects from another party to the Ruling Congress would be expected to work for that party and would be expected to use his personal influence in support of the candidate of that party does not mean that the object of bringing about the defection was to indirectly induce the Kshatriya voters to cast their votes for the 1st respondent.
He therefore held that payment of such money and holding out such inducement does not amount to any offence under the Election Law and it was with regret that he had to decide the case in favour of the 1st respondent.
We are in entire agreement with the finding of the learned Judge as regards the payment of Rs. 10,000/ to the appellant and also the offer to build hostel for Kshatriya students and do not consider it 901 necessary to go into the evidence in support of that finding.
That finding is supported not only by the evidence of Madnusudansinhji and Maulvi Abdur Rehman but also the letter exhibit T, passed by the latter to the appellant and Madhusudansinhji.
The question is whether that finding is enough to establish the charge of bribery against the 1st respondent.
There is still another finding necessary in regard to the allegations made in the petition in respect of which the learned Judge has given no finding and that is with regard to what happened of the 9th of February 1971.
We are at one with the view of the learned Judge that the payment of Rs. 10,000/ to the appellant was with a view to induce him to defect from organisation Congress to the Ruling Congress.
It may carry with it the implication that he was expected to use his influence with the voters to vote for the candidate set up by the Ruling Congress.
It has been held by this Court in Kalia Singh vs Genda Lal & ors.(1) to which two of us (Untwalia & Alagiriswami JJ) are party, that a payment made to a person in order to induce him to canvass votes on behalf of the bribe giver would not be bribery within the definition of that word in section 123(1) of the Representation of the People Act.
It was held that it is only in a case where the payment to a third person by itself induces the voter to vote for the bribe giver that it would fall under section 123(1).
Mr. Andley appearing on behalf of the appellant tried to persuade us that that decision requires reconsideration.
After having considered his arguments we are still of the opinion that the view taken in that decision is correct.
The object of providing that a payment should not be made to a person in order that that payment should induce some other person to vote for the bribe giver is obvious.
It is apparently intended to cover situations where payment to a husband, wife, son or father is intended to induce the wife, husband, father or son to vote for the bribe giver.
That would be indirect inducement.
otherwise it would be easy for the bribe giver to say that he did not bribe the voter himself and therefore it is not bribery.
That this provision was not intended to cover a case where money is paid to a certain person in order to make him induce another person to vote for the person who paid him the money would be obvious by looking at the converse case.
Under section 123(1)(B)(b) the receipt of or agreement to receive, any gratification, whether as a motive or a reward by any person whomsoever for himself or any other person for voting or refraining from voting or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate to with draw or not to withdraw his candidature is bribery.
Under this clause any person who receives or agrees to receive any gratification as a reward for inducing or attempting to induce any elector to vote etc. would be receiving a bribe.
The law therefore contemplates that where a person makes any payment to another person in order to make him use his influence to induce a third person to vote for him that is not bribery by the person who pays but the receipt of money by the second person for inducing or attempting to induce another elector to vote is bribery.
It is also bribery for the voter himself to receive 902 the money.
We, therefore, reiterate the view that when a candidate or anybody on his behalf pays any gratification to a person in order that the payment made to him may induce the voter to vote for the bribe giver it is bribery.
But where the gratification is paid to a person in order that he may induce the other persons to vote for the bribe giver it is not bribery on the part of the bribe giver.
It is, however, as we have explained above, bribery on the part of the bribe taker even when he takes it in order to induce an elector to vote for the bribe giver.
In this case it is obvious that the primary object of the payment made to the appellant was to induce him to defect from the Organisation Congress to the Ruling Congress.
That is not a corrupt practice under the Representation of the People Act.
Even if the payment was received with the promise that he would induce the voters to vote for the bribe giver it will not be bribery on the part of the bribe giver but only bribery on the part the bribe taker.
The defection of the appellant to the Ruling Congress, if it took place, might mean that he was expected to work for the Ruling Congress.
Equally it may not.
A person who changes his party allegiance at the time of the election probably might not command much respect among electors if the 1 electors knew that he had done so after receiving some money.
Otherwise the fact that two important persons the appellant and Madhusudansinhji, a younger brother of the ex ruler of Danta Stata had joined the Ruling Congress might be expected to influence the voters to vote for the candidate set up by the Ruling Congress.
But that would be not because of the payment made to the appellant and Madhusudansinhji.
Nor would such payment be bribery.
To reiterate, it is the payment to the appellant that must induce the voters to vote for the candidate set up by the Ruling Congress in order that it might amount to bribery.
It is not enough that his defection from organisation Congress to the Ruling Congress induces voters to vote for the Ruling Congress candidate.
As we said earlier, if the payment to the appellant came to be known as the cause for his changing allegiance it may have a boomerang effect.
It is therefore clear that the payment made to the appellant would not have induced the voters to vote for the Ruling Congress candidate.
While after his defection therefore the appellant might have been expected to work for the Ruling Congress candidate or equally might not have been, it is perhaps implicit that he would also vote for the Ruling Congress candidate.
Is this enough to make the payment made to the appellant bribery ? The payment was made not for the purpose of inducing him to vote but to make him defect to the Ruling Congress.
That was the purpose for which the payment was made.
That incidentally he might vote for the Ruling Congress candidate does mean that the payment was made to him in order to make him vote for the Ruling Congress candidate.
The bargain was not for his vote, the bargain was for his defection.
Therefore on this point we agree with the learned Judge of the High Court.
But if there was a specific request by the 1st respondent to the appellant that he should vote for him then the position would be different.
In that case it would be bribery and even bribery to one 903 person is enough to make an election void.
A specific allegation to that effect has been made in the election petition and that has not been considered by the learned Judge of the High Court.
We shall now proceed to do so.
The appellant gave evidence to the effect that the 1st respondent asked him on 9th February to vote for him and made the three promises earlier referred to.
He was not cross examined on that point but the 1st respondent in his turn deniesd this when he gave evidence.
Maulvi Abdul Rehman speaks to his having met the appellant on February 9, 1971 but he says that the 1st respondent was not with him at that time.
Madhusudansinhji says that he had met the appellant before the 14th and that at that time the appellant told him that the Maulvi and the 1st respondent were insisting that the appellant and he (Madhusudansinh) should join Congress (R).
He also denied a suggestion put to him in cross examination that it was not true that the appellant had told him before the 14th of February anything about the Maulvi or the 1st respondent telling the appellant that the appellant and he (Madhusudansinh) should join the Congress (R) on certain terms.
This is the evidence relied on to show that on the 9th the 1st respondent also had met the appellant.
If the appellant and Madhusudansinhji had met at Palanpur before the 14th and the appellant then told him that Maulvi and the 1st respondent were insisting that they should join the Ruling Congress the meeting should have been on the 13th or earlier and the request to him on the 12th or earlier.
Naturally having chosen to examine Madhusudansinhji, who had by that time joined the Ruling Congress, as his witness the appellant would not have risked putting questions about the exact date on which Maulvi and the 1st respondent had met him.
Quite possibly there was no such meeting on the 9th of February and that was why that question was not specifically put to him.
When that question was put to Maulvi Abdul Rehman, who was examined as P.W. 8 a little earlier, he denied that the 1st respondent was with him on the 9th February.
Coming to the conversation which the appellant and Madhusudansinhji had before the 14th, if the Maulvi and the 1st respondent were insisting either on the 13th or earlier that the appellant should join the Ruling Congress there should have been a meeting between them a little earlier than the 13th and it should have been on the 9th is the argument on behalf of the appellant.
But there are many imponderables in this argument.
If the Maulvi and the 1st respondent were insisting that the appellant and Madhusudansinhji should join the Ruling Congress it does not mean that they both did so at the same time.
They could have been doing it on different occasions separately.
Nor does it follow that the Maulvi and the 1st respondent met him on the 9th.
Nor does it follow that on that date the 1st respondent asked the appellant to vote for him.
The statement of Madhusudansinh is too slender a foundation on which this argument could be built.
It is thus a case of the appellant 's oath against 1st respondent 's oath and in a case of a serious charge like bribery we would not be satisfied merely on the basis of an oath against oath to hold that it has been satisfactorily established that the 904 1st respondent asked the appellant on 9th February to vote for him.
He may also mention that with regard to the alleged visit of the Maulvi and the 1st respondent to the appellant three other possible witnesses including the appellant 's wife, Pushpaben who could have been examined to establish that the 1st respondent accompanied the Maulvi to the appellant had not been examined.
A further fact which improbabilises this story is that in the election petition it is stated that the 1st respondent told the appellant that he would arrange for a ticket for Madhusudansinh in the 1972 elecations and pay him Rs. 10,000/ if Madhusudansinh left organisation Congress and joined the Ruling Congress and voted and worked for him (1st respondent) and asked him to convey the offer to Madhusudansinh.
No evidence was let in about the voting and what is more Madhusudansinh was not a voter in the Banaskantha Constituency.
This shows that the allegation regarding the request to appellant to vote for 1st respondent is of the character as the request to Madhusudansinh and put in merely for the purposes of the election petition and not a fact.
On broader considerations also it is very unlikely that when the talk was about the appellant and Madhusudansinh defecting to the Ruling Congress from the organisation Congress there would have been any talk about the voting itself.
All parties would have proceeded on the understanding that when they defected to the Ruling Congress they would both work and vote for the Ruling Congress.
The distinction between a gift or offer combined with the request to vote and the gift or offer to a person asking him to work for him with the incidental result that person might vote for him should always be kept in mind.
In such a case there is no specific bargain for the vote.
Were it not so it would be impossible for persons standing for election to get any person to work for them who is not also a voter in the constituency.
This was brought out by this Court in the decision in onkar Singh vs Ghasiram Majhi(1).
We would, therefore, hold that the case that 1st respondent bargained for the appellant 's vote has not been satisfactorily made out.
On behalf of the 1st respondent it was urged that the actions of the appellant and Madhusudansinhji immediately after the payment of Rs. 10,000/ and the dramatic developments at the meeting addressed by the Prime Minister show that there would not have been any bargaining for the appellant 's vote.
The points relied upon were (1) that it was not said by the appellant when he threw the money into the crowd on the 18th that he was asked to vote for the 1st respondent, (2) that it was not mentioned in the statement (exhibit 5) made by the appellant and Madhusudansinhji on 18 2 1971, (3) that was not mentioned in the interview given to the newspaper reporters found in exhibit 7 or in the newspaper report exhibit 8.
We do not consider that these things are of much importance.
At that time the most important factor was the attempt to persuade the appellant and Madhusudansinhji to defect to the Ruling Congress and any request to the appellant to vote for the 1st respondent would have been insignificant 905 even as we have held that when requesting the appellant and Madhusudansinhji to defect to the Ruling Congress it is not likely that they would have been asked to vote for the 1st respondent.
The reference to the piece of evidence just mentioned cannot be said to establish that there was no request made to the appellant to vote for the 1st respondent.
That would have to be decided on other factors and other evidence and on the basis of that evidence we have already held that it is not established that the 1st respondent requested the appellant to vote for him.
Now remains the question of the offer to build a hostel for Kshatriya boys.
Strictly speaking this does not arise on issue 10.
This is probabilised by the evidence of Madhusudansinhji, Maulvi Abdul Rehman and the appellant as well as exhibit T.
Whether it was to be in Danta or Banaskantha does not make much difference as long as it was for the Kshatriya boys.
The two places are near to each other though in different Parliamentary constituencies and in whichever place it was situate it will benefit Kshatriya boys and there is No. doubt that if the hostel were constructed by respondent No. 1 or the Ruling Congress party at his instance that would induce the voters to vote for the Ruling Congress candidate.
But before that happens the matter should come to the knowledge of the voters.
Only if the voters knew that the promise had been made to the appellant and Madhusudansinhji that promise would induce the voters to vote for 1st respondent.
But the knowledge of the prormise remained confined to the appellant and P.W. 10, in addition of course to Maulvi Abdul Rehman and the 1st respondent 's son.
If the payment or the promise was to induce the voters, it cannot induce the voters unless they come to know about the payment or the promise.
There is no evidence her that the voters knew about the promise to build the hostel.
The bargain in such cases as we have mentioned in the judgement delivered by us today in section Iqbal Singh vs Gurdas Singh & Ors. is really an offer on the part of the bribe giver that he would do such a thing if the voters would vote for him.
It is not necessary that the voters should have accepted it.
But the voters should have a knowledge about the offer.
Then only it would be a bargain.
An offer contemplated and retained in the mind of the offerer and not articulated and made known to the offeree will not be a bargain.
It therefore follows that in this case the offer to build a hostel does not also amount to bribery.
In the result we upheld the judgment of the High Court and dismise this appeal.
We make no order as to costs.
P.H.P Appeal dismissed.
[/INST]On 10 4 1968, a steamer arrived at the Madras port and landed inter alia a consignment or 202 bundles of black plain sheets of various sizes.
The appellants received the goods and stored them in the transit sheds.
The goods were imported by the first respondent under an authorisation issued by the State Trading Corporation of India which held a licence to import the goods from Hungary.
The clearing agents of the first respondent filed a bill of entry with the Collector of Customs.
But, the Customs authorities detained the goods as the specifications in the import licence did not tally with the description of the imported goods.
The Customs Authorities then issued a show cause notice to the 1st respondent and after considering his explanation passed an order confiscating the goods.
The first respondent preferred an appeal against that order to the Board which allowed the appeal.
On an application of respondent No. 1 the Customs Authorities issued a certificate stating that the goods were detained by the Customs Authorities from 24 4 1963 to 21 8 1964 for examination under sections 17(3) and 17(4) of the other than in the ordinary process of appraisement and that the detention was due to no fault or negligence on the part of the correspondent.
Acting on this certificate, the appellants waived the demurrage for the period covered by the certificate.
As a result of the said certificate, the appellant charged respondent No. 1, Rs. 1963/ instead of Rs. 3,20,951/ by way of demurrage.
Thereafter, the respondent No. I cleared the consignment.
In January, 1965, the appellants wrote a letter to the Customs Authorities stating that the certificate was issued erroneously and that the Customs Authorities should reconsider the matter.
In April, 1965, the Customs Authorities owned the mistake that the certificate was incorrect as the goods were detained in order to ascertain whether the Import Trade Control formalities were complied with and not for examination and assessment of duty under Sections 17(3) and 17(4) of the .
The appellants brought the present suit against respondent No. 1.
and the Union of India and Customs Authorities to recover the balance of ' demurrage amounting to about Rs. 3 Lacs.
The first respondent disputed is liability to pay the demurrage on the ground that it could not be penalised either for the delay caused by the Customs Authorities in clearing the goods or in the issuance by them of a wrong certificate.
The first respondent also contended that the scale of charges in the Port Trust Regulations under the heading Demurrage was void and ultra vires both for the reason that it was unreasonable and because the scale of charges was not within the authority of the appellants.
The High Court dismissed the suit for the following reasons (1) The Scale of rates fixed by the Board is in the nature of bye laws.
(2) Viewed as a bye law Rule 13(b) under which the Board can charge demurrage for the period during which the goods are detained for.
no fault or negligence of the importer or his agent, is unreasonable and therefore void.
(3) In principle, there can be no distinction between cases falling under clause (a) and those falling under clause (b) of Rule 13 and if 722 no demurrage is leviable in respect of cases falling within clause (a) no demurrage could be charged in respect of cases falling within clause (b).
The distinction made by the Board between the two kinds of cases was therefore arbitrary and unreasonable.
(4) 'Demurrage ', being a charge for wilful failure to remove the goods, can be levied only if the failure to remove the goods is due to the fault or negligence, of the importer or his agent.
(5) Having regard to this well accepted meaning of the word 'demurrage ', the authority given to the Board by section 12 of the Act to frame the scale of rates can be exercised only for the purpose of levying charges where the importer was not prevented by any lawful authority from clearing the goods from the transit area and he had defaulted or was negligent in clearing the goods.
(6) Since Rule 13(b) empowers the Board to charge demurrage even when the goods are detained for no fault or negligence of the importer or his agent, it is beyond the authority conferred by section 42 and is therefore, void.
Allowing the appeal, ^ HELD:(1) The High Court erred in holding that the sale of rates and statements of condition framed by the appellant under sections 42, 43, and 43A are by laws.
Those sections confer authority on the.
Board to frame a sale of rates at which and a statement of conditions under which any of the services specified therein shall be performed.
[732 C, 731 F] 2.
A bye law has been said to be an ordinance affecting the public, or some portion of the public, imposed by some authority clothed with statutory powers, ordering something to be done or not to be done and accompanied by some sanction or penalty for its non observance.
The Board 's power to frame a scale of rates and statement of conditions is not a regulatory power to order that something must be done or something may not be done.
The rates and conditions govern the basis on which the Board performs the services.
Those who desire to avail of the services of the Board are liable to pay for those services at prescribed rates and to perform the conditions framed by the Board.
In fact some of the services which the Board renders are optional.
Where services are offence by a public authority on payment of a price, conditions governing the offer and acceptance of services are not in the nature of bye laws.
They reflect or represent an agreement between the parties one offering his services at the prescribed rates and the other accepting the service at those rates.
[732 D H] 3.
Bye laws may be treated as ultra vires on the grounds, amongst others that they are repugnant to the statute under which they are made or that they are unreasonable.
But even a bye law cannot be declared ultra vires on the ground of unreasonableness merely because the court thinks that it goes further than is necessary or that it does not contain the necessary qualifications or exceptions.
Kruse vs Johnson , relied on.
[731 F. 733 B] 4.
Port Trusts are bodies of a public representative character who are entrusted by the Legislature with authority to, frame a scale of ' rates and a statement of conditions subject to which the shall or may perform certain services.
Port Trusts are not commercial organisations which carry on business for their own profit.
The Board of Trustees is broad based body representing a cross section of a variety of interests.
The requirement of sanction by the Central Government is a restraint on unwise, excessive, or arbitrary fixation of rates.
section or a variety of interests.
The requirement of sanction by the Central whole or any portion of rates or charges leviable according to any scale in force under section 44.
Thus the Statute provides for the necessary safeguards, checks and counter checks as an insurance against fixation and levy of harsh or unjust rates.
Section 49 of the Act confers power on the Assistant Collector of Customs if he is satisfied that the goods cannot be cleared within a 723 reasonable time to permit that the goods might pending clearance be stored in a public warehouse or in a private warehouse.
In face of these considerations it is impossible to characterise the scheme for the levy of rates as arbitrary or unreasonable.
[734 & G H, 735 A C] 5.
The High Court erred in equating cases falling under clause (h) with those falling under clause (a) of Rule 13.
The two classes deal with different sets of cases.
Clause (a) deals with cases where goods are detained for examination under sections 17(3) and 17(4) or for chemical test under section 144 whereas clause (b) deals with cases where the goods are detained on account of Import Trade Control formalities or for compliance of formalities prescribed under the Drugs Act.
There is no warrant for the court substituting its own view as to the allowance of three days in a technical matter like the fixation of rates which has been considered by an export Board of Trustees and whose decision has been confirmed by the Central Government.
Equating the two clauses of cases dealt with by clauses (a) and (b) of Rule 13 might seem to the court a more prudent or reasonable way of fixing scales of rates but that is not a correct test for deciding the validity of the impugned provision.
[735 D F] 6.
The High Court overlooked a fundamental aspect of fixation of rates.
The Board is under a statutory obligation to render services of various kinds and those services have not to be rendered for the personal benefit of this for that importer but in the larger national interest.
Congestion in the ports affects the free movement of ships and of essential goods.
The scale of rates has, therefore, to be framed in a manner which will act both as an incentive and as a compulsion for the expeditious removal of the goods from the transit area.
Ships, like wagons, have to be kept moving and that can happen only if there is pressure on the importer to remove the goods from the Board 's permises with the utmost expedition.
1735 F H; 736 A] 7.
As regards the appellants ' claim against the first respondent.
facts must come before the law because legal principles cannot be applied in a vacuum.
No oral evidence was let by the parties and documents do not prove them selves nor indeed is the admissibility of a document proof by itself of the truth of its; contents.
The Import Licence stood in the name of the State Trading Corporation.
It issued an authorisation in favour of the first respondent.
The first respondent was only entitled to charge a commission for the work done by it in pursuance of the authorisation issued by the Corporation.
If the appellants were to enforce the statutory lien.
the incidence of the demurrage would have fallen on the Corporation in whom the title to the goods was vested.
The appellants permitted the goods to be cleared without demanding the demurrage which they claimed later, thereby depriving the respondent of the opportunity and the right to reject the goods as against the supplier.
In the absence of any more faces, it is impossible on the record as it stands, to accept the appellants ' claim against the first respondent.
[737 F H, 738 A B]
</s>
|
<s>[INST] Summarize the judgementAppeal No. 613 of 1965.
Appeal from the judgment and decree dated March 25, 1960 of the Mysore High Court in Regular Appeal No. 155 of 1953.
V. Krishnamurthy and R. Gopdlakrishnan, for the appellant.
H. R. Gokhale, B. Subbiah and R. Thiagaraian, for, respondents Nos. 2 and 4.
The Judgment of the Court was delivered by Ramaswami, J.
The plaintiff G. Narayana Raju filed O.S. 34 of 1951 52 in the Court of District Judge, Mysore for partition and separate possession of suit properties mentioned in the various schedules of the plaint.
The first defendant is the brother 465 of the plaintiff.
The second defendant is the widow of Muniswami Raju, the eldest brother of the plaintiff.
The third defendant is the legal representative of the plaintiffs mother.
She is now the, appellant having been brought on record as the legal representative of the deceased plaintiff.
The case of the original plaintiff was that he, the first defendant and Muniswami Raju (husband of the second defendant) were the sons of one Gopala Raju and were all members of the joint family Gopalaraju died in May 1931 and after his death the plaintiff and his brothers continued to be members of the joint family.
The joint status of the, family was severed by the issue of a registered notice by the first defendant to the plaintiff in July 1951.
An ancestral house in Nazar bad belonging to the family was acquired by the City IuprovementTrust Board in or about the year 1909.
Out of the compensation paid for that house and supplemented by the earnings of the members of the joint family, the house item No. I of Schedule 'A ' to the plaint was purchased by Gopalaraju in or about the year 1910.
Subsequently item No. 2 of Schedule 'A ' was also purchased by Gopalaraju from the income of item No. I supple mented by the earnings of the members of the family.
All the other items of properties mentioned in Schedule 'A ' and other Schedules attached to the plaint were acquired out of the income from items 1 and 2 of Schedule 'A ', It was further alleged that the business known as "Ambika Stores" was also the joint family business and all the properties mentioned in the Schedules except items I and 2 of Schedule 'A ' were acquired out of the income of the members of the family including the income from the business of Ambika Stores.
The plaintiff accordingly claimed that he and the first defendant would each be entitled to get 5/14ths share and the second and third defendants would each be entitled to get 2/14ths.
share.
In the alternative the plaintiff pleaded that if for any reason the Court held that the properties stand in the name of Muniswami Raju and were not acquired with the aidof the joint familv nucleus, he and the second defendant were entitled to equal shares as co owners of the joint family business.
The suit was mainly contested by the second defendant who asserted that the properties mentioned in all the Schedules of the plaint were self acquisitions of Miiniswami Raju and constituted his separate properties.
It was alleged that Muniswami Raju was the only carniiig member of the family at the time of the acquisition of items 1 and 2 of Schedule operties and the plaintiff and the first defendant were emploved,in petty jobs in Wesley Press.
Muniswami Raju later on employed the plaintiff in his shop as a salaried servant and the latter had no proprietary right in the business of Ambika Stores.
After consideration of the oral and documentary evidence the District Judge held that the plaintiff, first defendant and Muniswami Raju were not divided and that the only property which was divisible was item No. I of Schedule 466 'A ' and there was not sufficient ancestral nucleus for acquisition of the other properties and that all properties except item No. 1 of Schedule 'A were the self acquisitions of Muniswami Raju, that Muniswami I Raju never blended his properties with that of the joint family that the plaintiff was only an employee under Muniswami Raju and therefore he was not entitled to the alternativ ' relief claimed by him.
Accordingly, the District Judge granted a preliminary decree holding that the plaintiff was entitled to 2/7ths share in item No. I of Schedule 'A '.
The plaintiff took the matter in appeal to the Mysore High Court.
By its judgment dated March 25, 1960 the High Court affirmed the decree of the trial court with the modification that besides item No. I of Schedule 'A ' item No. 2 also should be hold to be joint family property and the plaintiff was entitled to partition of his share in this item also.
The High Court cancelled the I direction of the District Judge that the plaintiff should account for the moneys and properties of Muniswami Raju in his hands before he is given possession of his share.
This appeal is brought by certificate on behalf of the plaintiff from the judgment of the Mysore High Court dated March 25, 1960 in R.A. No. 155 of 1953.
The first question to be considered in this appeal is whether the business of Ambika Stores was really the business of the joint family and whether the plaintiff was entitled.
to a partition of his share in the assets of that business.
: It was contended on behalf of the appellant that the business of Ambika Stores grew out of a nucleus of the joint family funds of at least by the efforts of the members of the joint family include the appellant.
The contention of the appellant has been negatived by both the lower courts and there is a concurrent finding that the Ambika Stores was the separate business of Muniswami Raju and it was neither the joint family business nor treated as joint family business, It is wellestablished that there is no presumption under Hindu law that a business standing in the name of any member of the joint family is a joint family business even if that member is the manager, of the joint family.
Unless, it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate.
The question therefore whether the business was begun or carried on with the assistance of joint family property or joint family funds or as a family business is a question of fact. (See the decisions of the Judicial Committee in Bhwu Mal vs Jagannath (1) and in Pearey Lal vs Nanak Chand (1) and of this Court in Chattahatha Karayalar vs Ramachandra (1) A.T.R (2) A.T.R. 467 lyer) (1).
In the present, case there is a concurrent finding of both the lower courts that the business of Ambika Stores was a separate, business of Muniswami Raju and it, was neither a joint family business nor treated as joint family business.
The concurrent finding of the lower courts on this issue is upon a finding of fact and following the usual practice of this Court, it is not now open to further scrutiny by this Court under article 133 of the Constitution.
It was, however, contended on behalf of the appellant that the finding of the lower.
courts is vitiated in, law because of the circumstance that they have not taken into account three important documents, exhibit D, exhibit E and exhibit DDD.
We are unable to accept this argument as correct.
It is manifest on a perusal of the judgment of the High Court that all the documents have been examined, regarding the issue whether the business of Ambika Stores was a joint family business or whether it was p. separate, business of Muni swami Raju.
As regards exhibit D, the High ,Court has, after examining the evidence adduced, remarked that the, mere fact that item No. 2 of Schedule 'A was given as a security by Muniswami Raju did not result in any detriment to the joint family property and, it cannot therefore be held that the business of Ambika Stores grew out of the joint family funds or with the aid of the joint family funds.
On behalf of the appellant reliance was placed on the recitals in exhibit E, a deed of mortgage dated July 26, 1928 executed by Gopalaraju, Muniswamiraju and the appellant in favour of the Mysore Bank.
The property that had been mortgaged under this document is item No. 2 of Schedule 'A '.
The recital is that the borrowing from the Bank was for the business and trade of the executants and for the benefit and use of their family.
There is also a recital in an earlier portion of the document that the business, was being carried on for the benefit of the family, but it is not quite clear as to whether this related to the business carried on by Narayana Raju or whether it was intended to relate to some business carried on by all the three executants.
It is possible that the appellant had other business of his own carried on on his own.
account at that time and it cannot be, assumed that the borrowing under exhibit E must have been for the purpose of Ambika Stores.
It should be noticed that Muniswarni Raju has been described in the document as the proprietor of Ambika Stores which description is.
not consistent with the contention of the appellant that the business, was a joint family business.
The High Court has, in this connection, referred to exhibit I an application dated February 14, 1929, by the appellant to the City Co operative Bank, Mysore wherein, the appellant has said that he was getting a decent earning by doing; out of door commercial business with Ambika Stores.
There is also the, recital in exhibit I that Muniswami Raju was the proprietor of Ambika Stores.
Having regard to this recital in I it is not (1) ; 468 unlikely that the appellant had some business of his own at the material time and it cannot be assumed that borrowing under exhibit E, was for the purpose of Ambika Stores business only.
The High Court has also dealt with the effect of exhibit DDD, mortgage deed produced on behalf of the appellant.
It is true that in this document the appellant and Muniswami Raju have been described as proprietors of Ambika Stores.
The finding of the High Court is that this recital was made in the document for the purposes of borrowing from the Bank.
Reference was made in this context to a letter dated May 5, written by Muniswami Raju as proprietor of Ambika Stores to the Bank of Mysore.
In ' this letter, he has requested the Bank to take note of the fact that he has authorised the appellant to accept drafts, and sign letters etc.
on behalf of the firm ' There is another Letter, exhibit 76, dated April 14, 1934 written by Muniswami Raju to the Bank of Mysore wherein Muniswami Raju has been described as the proprietor of Ambika Stores and there is an intimation to the Bank, that the appellant Narayana Raju was authorised to sign for the firm.
In the context and background of these circumstances it is evident that though both the appellant and Muniswami Raju were described as proprietors of Ambika Stores the description was only for the purpose of borrowing money from the Bank, as contended for by the respondents.
In this connection the High Court has also taken into account exhibit 7 5 (b), a letter written by Muniswami Raju.
In this letter Muniswami Raju has described himself as the proprietor of Ambika Stores and has instructed the Bank that he has cancelled the authority given to the appellant to operate one his Current Account with the Bank.
It is therefore not possible for us to accept the contention of the appellant that the finding of the High Court that the business of Ambika Stores was the exclusive business of Muniswami Raju is vitiated in law.
On the other hand, it was contended on behalf of the respon dents that the finding of the High Court is supported by proper evidence.
The business of Ambika Stores was started by Muniswamiraju as the proprietor thereof at a time when Muniswamiraju himself was comparatively well off as a result of his partnership with Krishnaswamy Chetty & Co. In the year 1925 the partnership of Krishnaswamy Chetty & Co. was dissolved by a document exhibit D.
The entire business with 'all the assets ad liabilities was taken over by Muniswami Raju while the widow and son of Krishnaswamy Chetty were given a house estimated by the appellant himself at Rs. 3,000/ and furniture worth Rs. 400/ .
Muniswami Raju changed the name of the 'shop after taking it over into Ambika Stores and continued the business as is apparent from Exs.
XVIII, XXVI and XXVI(A).
There is also evidence that at the time when Ambika Stores was started other members of the family we 're not in a financial position to make any contribution to pur 469 such a business.
The appellant joined Wesley Press in 1912 on a salary of Rs. 8 or Rs. 9 p.m. and he was drawing Rs. 27 p.m. in 1927 when he resigned from the Press.
The first defendant joined Wesle Press in 1910 on a salary of Rs. 10 p.m. and he was continuing to work there till the institution of the present suit. 'Me income of the property item No. 2 of ' Schedule 'A ' was Rs. 15 p.m. and the income from pounding rice for which there is no satisfactory evidence was also negligible.
Therefore, the earnings of the members of the family other than Muniswami Raju were hardly sufficiently to maintain the family at the time when the business of Ambika Stores was started.
The High Court has found that the family did not have sufficient nucleus and that Muniswami Raju was not a partner of Krishnaswamy Chetty & Co. on behalf of the family but that he was a partner in his own right.
The High Court has observed that there is no evidence to show that the family supplied the money or that the family had enough means or that Muniswami Raju was representing the family when he started the business of Ambika Stores.
As we have already said, the finding of the High Court and of the District Judge is a concurrent finding on a question of fact and Counsel on behalf of the appellant has been unable to make good his argument that the finding is vitiated in law on any account.
We pass on to consider the alternative argument put forward on behalf of the appellant, namely, that even if the business of Ambika Stores was started as, a separate business of Muniswami Raju, it became converted at a subsequent stage into joint family business.
It was argued on behalf of the appellant that the business of Ambika Stores was thrown by Muniswami Raju into the common stock with the intention of abandoning all separate claims to it and therefore the business of Ambika Stores lost its character of a separate property and was impressed with the character of joint family property.
It is a well established doctrine of Hindu law that property which was originally self acquired may become joint property if it has been voluntarily thrown by the coparcener into the joint stock with the intention of abandoning all separate claims upon it.
The doctrine has been repeatedly recognized by the Judicial Committee [See Hurpurshad vs Shea Dayal(1) and Lal Bahadur vs 'Kanhaiya Lal( ).
But the question whether the coparcener has done so or not is entirely a question of fact to be decided in the light of all the circumstances of the case.
It must be established that there was a clear intention on the part of the copareener to waive his separate rights and such an intention will not be inferred merely from acts which may have been done, from kindness or affection [See the decision in Lata Muddun Gopat vs Khikhinda Koer (3).
For instance, in Naina Piltal vs Daiyanai (1) 3 I.A. 259.
(2) 34 I. A. 65.
(3) 18 I. A. 9.
470 Ammal, (1) where in a series of documents, self acouired property was described and dealt with as ancestral joint family it was held by the Madras High Court that the mere dealing with self acquisitions as joint family property was not sufficient but an intention of the coparcener must be shown to waive his claims with full knowledge of his right to it as his separate property.
The important point to keep in mind, is that the separate property of a Hindu coparcener ceases to be his separate property and acquires the characteristics of his joint family or ancestral property, not by mere act of physical mixing with his joint family or ancestral property, but by his own volition and intention, by his waiving or surrendering his special right it as separate prop".
A man 's intention can be discovered only from his words or from his acts I and conduct.
When his inention with regard to his separate property is not expressed in words, we must seek for it in his acts and conduct.
But it is the intention that we must seek in every case, I the acts and conduct being no more than evidence of the intention.
In the present case, the High Court has examined the evidence adduced by the parties and has reached the conclusion that there was no intention on the part of Muniswami Raju to throw the separate business of Ambika Stores into the common stock, nor was it his intention to treat it as a joint family business.
Counsel on behalf of the appellant referred to the recital, in exhibit E describing the properties being those of the executants and that the borrowings was for trade and benefit of the family and it was argued that there was a clear intention on the part of.
Muniswaini Raju to treat the business as joint family business.
We have already referred to this document and indicated that the recitals were probably made for the purpose of securing a loan and cannot be construed as consent on the part of the members of the joint family to treat the business as the joint family business.
Further, there is ample evidence to show that in all succeeding years before his death Muniswami Raju had always described himself and conducted himself as the sole proprietor of Ambika Stores, Such an attitude on the part of Muniswami Raju was not consistent with any intention on his part either to abandon his exclusive right to the business or to allow the business ' to be treated as joint family business.
Exhibits XXXV to XLVI are all documents executed by third parties in favour of Muniswami Raju in which Muniswami Raju has been described as the proprietor of Ambika Stores.
Exhibits III, XXIII, XXIV, 51, 52, 56, 58, ZZ, AAA series and BBB are all communications addressed by institutions like Banks etc., in which Muniswwni Raju has been described as the proprietor of Ambika Stores.
It may be stated that the appellant himself has admitted in his evidence that he was not drawing any moneys from the business of Ambika Stores and that whenever he wanted any_money, he would ask Muniswami Raju and obtain (1) A.I.R. 1936 Mad .177. 471 from him.
If really the appellant had considered himself to be I co owner equally with Muniswami Raju, such conduct on his part is not explicable.
it was urged on behalf of the appellant that there was no documentary evidence to show that the appellant was being paid any salary 'Muniswami Raju, and that prior to Muniswami Raju 's death, it was the appellant who was in the entire management of Ambike stores when Muniswami Raju was ill and after the death of Muniswami Raju also it was the appellant who had been in management.
Al, the books of account and other documents pertaining to the business of Ambika Stores had been admittedly entrusted to the appellant.
But it is not explained on behalf of the appellant as to why the documents were not produced on his behalf to disprove the Case of the respondents that he was a salaried servant.
It is therefore not unreasonable to draw an inference from the conduct of the appellant that the Account Books, if produced in court, would not have supported his case.
We accordingly reject the argument of the appellant that the business of Ambika Stores became converted into joint family business at any subsequent stage by the conduct of Muniswami Raju in throwing the business into the common stock or in blending the earnings of the business with the joint family income.
it was finally contended on behalf of the appellant that, in any event, the appellant became a co owner of the business along with Muniswami Raju by reason of contribution of his own labour towards the development of the business.
In our opinion, there is no substance in this argument.
It is evident that the appellant gave up his job in Wesley Press and joined Ambika Stores about 9 or 10 months after it was started by Muniswami Raju.
The appellant does not state in his evidence that he was a co owner when he joined Ambika Stores.
On the other hand, in exhibit 68 which is an application dated March 20, 1928 by the appellant to the City Co operative Bank, the appellant has described himself as a clerk in Ambika Stores and Muniswami Raju has been described as his proprietor.
There is no satisfactory evidence on behalf of the appellant to show as to when and under which circumstances his status of a clerk changed to that of a co owner.
In another application, exhibit I which is of the year 1929 the appellant has described Muniswami Raju as the Proprietor of Ambika Stores and he has described himself as doing out door commercial business with Ambika Stores.
Again, in exhibit C which is a loan application made in 1932 by both the brothers, Muniswami Raju has been described as the proprietor of Ambika Stores while the appellant has been described as a General Merchant of Mysore.
Reference was made on behalf of the appellant to recitals in exhibit DDD, a mortgage deed dated June 20, 1934 in which Muniswami Raju and the appellant have been described as proprietors of Ambika Stores.
We have already dealt with this, document and for the reasons already mentioned we hold that the description of the 472 executants was only given for the purpose of borrowing from the Bank and it had not the legal effect of making the appellant .
co owner of the partnership business.
There is no evidence of any assertion by the appellant during Muniswami Raju 's life time of his being a co owner of the partnership business, nor is there any evidence of recognition by Muniswami Raju of any such right of the appellant.
On the other hand, there is sufficient evidence to show that whatever the appellant did in connection with the business was only done with the Authority conferd by Muniswami Raju.
In our opinion the High Court has rightly rejected the claim of the appellant that he was a co owner of the partnership business.
For the reason expressed we hold that this appeal has no merit and it must be dismissed with costs.
R.K.P.S. Appeal dismissed.
[/INST]Under section 73 of the Bombay Municipal Boroughs Act, 1925 read with rr.
4(1) and 5 made thereunder a rate on nonresidential buildings belonging to factories and mills was leviable on a capital basis, and the capital value for this purpose was to be worked out, if 'reliable data ' were furnished by the assessee, on the basis of such data.
The respondent company owned certain buildings on which rat was leviable under r. 4(1) on the basis of capital value.
The respondent company claimed that the actual cost of construction of the buildings in 1920 ought to be taken as the capital value.
The Municipality of Godhra however made its own estimate of the capital value.
Thereafter the Judicial Magistrate and the Sessions Judge made valuations taking into account the rise in the cost of building materials since 1920.
The High Court in revision upheld the view that the actual cost minus depreciation thereon should be the capital value; it observed that the English law and practice as to levy of rates was not relevant in the Indian context.
The Municipality appealed.
HELD: (i) When legislatures in this country enact statutes which closely resemble statutes in England and have the same purpose and object in view, then unless the expressions used in the Indian Statutes are defined courts of law cannot go wrong in interpreting them in the way English judges have done.
Further, the words which have acquired a particular shade of meaning in England may be given the same meaning unless there is anything in the statute its, If which would be contraindicative.
[486 F G] (ii) Section 73 empowered the municipality to impose a rate on buildings or lands.
The word 'rate ' had not been defined in the Act but it has a well known meaning.
In Patel Gordhandas,s, case this Court examined various statutes bearing on the English rating law and held that the word 'rate ' was used with respect to a tax which was levied on the net annual value or rateable value of lands and buildings and not on their capital value, but capital value could be adopted as the basis for working out the annual value.
[485G 486E] (iii) Rule 4 of the Godhra Municipal Rules shows what properties are to be valued on capital basis.
What the capital basis is not defined.
The capital value however can be determined in the way laid down in Patel Gordhandasg case by adopting the contractor 's method.
[487B].
(iv) The figures given in the balance sheet of the company could not be regarded as 'reliable data ' for the purpose of r. 5.
The figures given in the balance sheet are merely statements in terms of the form given in 482 Schedule VI.
They have no relevance in determining the capital value of property for the purpose of assessment to a rate.
[488 B C] [Case remanded to District Judge for determining capital value by adopting contractors method in the light of the observations made by this Court.] Patel Gordhandas Hargovindas vs Municipal Commissioner, Ahmedabad, ; , relied on.
R. vs School Board for London, (1885) 55 L.J.M.C. 33, referred to.
</s>
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<s>[INST] Summarize the judgementAppeals Nos. 668, 669, 670 and 672 of 1957.
Appeal by special leave from the judgment and order dated August 6, 1957, of the Assam High Court in Civil Rule No. 65 of 1957.
A. V. Viswanatha Sastri and Dipak Datta Choudhury, for the appellants in C. As.
Nos. 668 and 669 of 1957 and respondent No. 2 in C.A. No. 670 of 1957.
section M. Lahiri, Advocate General for the State of Assam and Naunit Lai, for the appellants in C.A. No. 670 of 1957 and respondent No. 2 in C.A. No. 669 of 1957.
February 7.
The following Judgment of the Court was delivered by 1342 SINHA J.
These appeals by special leave are directed against the judgments and orders of the Assam High Court, exercising its powers under articles 226 and 227 of the Constitution, in respect of orders passed by the Revenue Authorities under the provisions of the Eastern Bengal and Assam Excise Act, 1910 (E. B. and Assam Act I of 1910) (hereinafter referred to as the Act).
They raise certain common questions of constitutional law, and have, therefore, been heard together, and will be disposed of by this Judgment.
Though there are certain common features in the pattern of the proceedings relating to the settlement of certain country spirit shops, when they passed through the hierarchy of the authorities under the Act, the facts of each case are different, and have to be stated separately in so far as it is necessary to state them.
(1) Civil Appeal No. 668 of 1957.
The two appellants Nagendra Nath Bora and Ridananda Dutt are partners, the partnership having been formed in view of the Government notification dated November 30, 1956, amending rule 232 of the Assam Excise Rules, to the effect that the settlement of the country spirit shops which may be declared by the Government to be 'big shops ', shall be made with two or more partners who shall not belong to the same family nor should be related to one another (vide correction slip at p. 106 of the Assam Excise Manual, 1946).
In accordance with the rules framed under the Act, tenders were invited by the Deputy Commissioner of Sibsagar, for the settlement of Jorhat country spirit shop for the financial year 1957 58, in December, 1956.
The appellants as members of the partnership aforesaid, submitted a tender in the prescribed form.
Respondents 3 and 4, Dharmeshwar Kalita and Someswar Neog, respectively, also were amongst the tenderors.
The Commissioner of Hills Division and Appeals,, Assam, and the Commissioner of Excise, Assam, are the first and the second respondents in this case It is necessary to state at this stage that in respect of the financial year 1956 57, the shop in 1243 question was ordered by the first respondent as the Excise Appellate Authority to be settled with the first appellant Nagendra Nath as an individual, setting aside the orders of the Deputy Commissioner and the Excise Commissioner.
The other competitors for the settlement of the said shop being dissatisfied with the orders of the first respondent, moved the Assam High, Court and challenged the validity of the settlement made in the first appellant 's favour.
Similar writ cases challenging orders of settlement by the first respondent as the Excise Appellate Authority, had been instituted in the High Court.
All those cases were heard together, and the High Court, by its judgment dated May 22, 1956, quashed the orders passed by the first respondent, chiefly on the ground that the Appellate Authority had been illegally constituted.
The matter was brought by way of special leave to this Court, and was heard by the Constitution Bench which, by its judgment dated January 31, 1957, decided that the constitution of the Commissioner of Hills Division and Appeals as the ultimate appellate Authority under the Act, was not unconstitutional.
The judgment of this Court is reported in the case of The State of Assam vs A. N. Kidwai (1).
It will be necessary, in the course of this judgment, to make several references to that decision which, for the sake of brevity, we shall call the ruling of this Court '.
The result of the ruling of this Court, was that the determination by the Assam High Court that the orders passed by the first respondent, were void, was set aside, and the settlement made by that Authority, consequently, stood restored.
But in the meantime, as the orders of the first respondent stood quashed as a result of the judgment of the High Court, the direction of the Excise Commissioner that the shop in question be resettled, was carried out, and the settlement was made with the third respondent aforesaid as an individual.
He continued in possession of the shop until February 26, 1957, on which date, the first appellant was put in possession as a result of the ruling (1) [1957] S.C.R. 295.
158 1244 of this Court.
Even so, the first appellant could exercise his rights as a lessee of the shop only for a few months during the financial year ending March 31, 1957.
For the financial year 1957 58, the Deputy Commissioner, in consultation with the local Advisory Committee, settled the shop in question with the third and the, fourth respondents aforesaid.
The tender submitted by the appellants, was not considered by the licensing authority on the erroneous ground that the orders passed by the first respondent as the ultimate Revenue Authority in the matter of settlement of excise shops, had been rendered null and void as a result of the decision of the High Court, referred to above.
The appellants, as also others who were competitors for the settlement aforesaid, preferred appeals to the Excise Commissioner who set aside the settlement made in favour of the respondents 3 and 4, and ordered settlement of the shop with the appellants.
The Excise Commissioner took into consideration the fact that the order of the High Court, nullifying the proceedings before the first respondent, had been set aside by the ruling of this Court.
The consequence of the order of this Court, was, as the Commissioner of Excise pointed out, that a supposed disqualification of the appellants as competent tenderers, stood vacated as a result of the first respondent 's order.
The third and the fourth respondents, as also other dissatisfied tenderers preferred appeals to the first respondent against the order of the second respondent (the Excise Commissioner).
The first respondent dismissed those appeals and confirmed the order settling the shop with the appellants, by his order dated June 10, 1957.
The respondents 3 and 4, then, moved the High Court under articles 226 and 227 of the Constitution, for an appropriate writ for quashing the order passed by the first respondent.
The High Court, by its order dated August 6, 1957, quashed the aforesaid order of settlement in favour of the appellants by the first respondent.
The High Court further directed that all the tenders be reconsidered in the light of the observation made by it.
The main ground of decision in the 1245 High Court, was that the Excise Appellate Authority had acted in excess of its jurisdiction, and that its order was vitiated by errors apparent on the face of the record.
The prayer for a certificate that the case was a fit one for appeal to this Court, having been refused by the High Court, the appellants obtained special leave to appeal.
(11) Civil Appeal No. 669 of 1957.
This appeal relates to the settlement of the Murmuria country spirit shop in the district of Sibsagar, for the financial year 1957 58.
The appellant Lakhiram Kalita and the first respondent Bhanurani Pegu, amongst others, had submitted their tenders for the settlement of the shop.
The Deputy Commissioner, after consulting the Advisory Committee, settled the shop with the first respondent aforesaid.
The appeals filed by the appellant and other disappointed tenderers, were dismissed by the Excise Commissioner by his order dated March 25, 1957.
Against the said order, the appellant and another party filed further appeals to the Commissioner of Hills Division and Appeals, who, by his order dated May 30, 1957, set aside the settlement in favour of the first respondent, and ordered settlement with the appellant.
In pursuance of that order, the appellant took possession of the shop with effect from June 5, 1957.
The first respondent 's application for review of the order aforesaid, stood dismissed on June 11, 1957.
Against the aforesaid orders of the Commissioner of Hills Division and Appeals, the first respondent moved the High Court under articles 226 and 227 of the Constitution, for a proper writ for quashing them.
On June 17, 1957, the writ petition was heard ex parte, and the High Court issued a rule to show cause why a writ as prayed for, should not be issued.
The rule was made returnable within three weeks.
The High Court also made the further order in these terms: "Meanwhile, the status quo ante will be maintained.
" This last order was misinterpreted by the first respondent and his advisers as entitling them to be put in 1246 possession of the shop, and it is stated that the first respondent threatened the appellant to oust him from the shop on the basis of the order of the High Court quoted above.
The appellant moved the High Court for a clarification of its order aforesaid.
The High Court naturally observed that by I maintaining status quo ante ', the High Court meant that whoever was in possession of the shop on June 17, 1957, will continue to be in possession during the pendency of the case in the High Court.
But, curiously enough, the Deputy Commissioner, by an ex parte order, on June 21, 1957, directed that the first respondent be put in charge of the shop forthwith, and the order was carried out.
When the Deputy Commissioner was approached by the appellant to restore him to possession in view of the observation of the High Court, he asked the appellant to obtain further order from the High Court.
Thereafter, the appellant again moved the High Court on June 28, 1957, stating all the facts leading to his wrongful dispossession, and seeking relief in the High Court.
No order was passed on that petition.
Ultimatey, the High Court, by its order dated July 31, 1957, set aside the order of the Commissioner of Hills Division and Appeals.
The appellant 's prayer for a certificate that the case was a fit one for appeal to this Court, having been refused by the High Court, he moved this Court and obtained special leave to appeal.
(III) Civil Appeal No. 670 of 1957.
This appeal is on behalf of the Commissioner of Hills Division and Appeals, Assam, against the judgment and order of the High Court relating to the Murmuria shop which is the subject matter of Civil Appeal No. 669 referred to in the previous paragraph.
The first respondent to this appeal is Bhanuram Pegu who is also the first respondent in Civil Appeal No. 669 of 1957.
The second respondent is Lakhiram Kalita who is the appellant in Civil Appeal No. 669 of 1957.
Both these respondents, as already indicated, are the competing tenderers for the shop in question.
The facts of this case have already been stated in relation 1247 to Civil Appeal No. 669 of 1957.
This appeal has been brought with a view to getting the legal position clarified in view of the frequent appeals made to the appellant in the matter of settlement of excise shops.
(IV) Civil Appeal No. 672 of 1957.
This appeal relates to the Tinsukia country spirit shop in the district of Lakhimpur.
The appellants, Rafiulla Khan and Mahibuddin Ahmad, are partners, and as such, are interested in the settlement of the shop for the financial year 1957 58.
This shop had been jointly settled with the first appellant and his father for a number of years.
For the year 1956 57 also, the lease had been granted to them by the Deputy Commissioner, after consultation with the Advisory Committee.
A number of unsuccessful tenderers filed appeals before the Commissioner of Excise questining the settlement with the first appellant and his father in respect of the year 1956 57.
The Excise Commissioner set aside the settlement, and ordered a resettlement.
The first appellant and his father filed an appeal before the Excise Appellate Authority, against the order of the Commissioner of Excise.
The Appellate Authority allowed the appeal, and set aside the orders of the Commissioner and the Deputy Commissioner.
One Rafiqul Hussain, one of the competitors for the shop, filed a writ petition before the High Court under articles 226 and 227 of the Constitution.
This writ application, along with other similar applications, was heard and decided by the High Court, as afore.
said, by its judgment dated May 23, 1956.
Against the judgment of the High Court, the first appellant and his father appealed to this Court by special leave, with the result indicated above.
During the pendency of the appeal in this Court in the absence of a stay order, the direction of the Commissioner for a resettlement, was carried out.
The Deputy Commissioner, with the unanimous advice of the Advisory Committee settled the shop with the first appellant on July 25, 1956.
The first respondent and some others preferred appeals before the Commissioner of Excise, against the order aforesaid of the Deputy Commissioner.
As the 1248 special leave appeals to this Court were pending at that time, the Excise Commissioner, under a misapprehension of the effect of this Court 's order refusing interim stay, set aside the Deputy Commissioner 's order, and directed the settlement to be made with the first respondent.
As there was no Excise Appellate Authority functioning at the time as a result of the decision, aforesaid, of the High Court, declaring the constitution of such an Authority to be void, the first appellant moved the High Court under articles 226 and 227 of the Constitution, on the ground that the order of the Excise Commissioner was vitiated by an error apparent on the face of the record in so far as he had misunderstood the order of the Supreme Court passed on the stay petition.
The High Court admitted the application but rejected the prayer for maintenance of status quo in the sense that the first appellant 's possession be maintained.
On the stay petition being rejected by the High Court, the first respondent took possession of the shop from the first appellant as a result of the Excise Commissioner 's order in his favour.
The High Court ultimately dismissed the writ application by its order dated December 6, 1.956.
The appeal filed by the appellant and his father, already pending in this Court, was heard and determined as aforesaid, in January, 1957.
This Court reversed the decision of the High Court, and restored the status of the Excise Appellate Authority.
As a result of the ruling of this Court, the Excise Appellate Authority, by its order dated February 25, 1957, directed delivery of possession back to the first appellant and his father, holding that the order of resettlement and the resettlement, itself, in pursuance of that order, were all wiped out.
Against the said order, the first respondent moved the High Court under articles 226 and 227 of the Constitution for quashing the order for delivery of possession, on the ground of want of jurisdiction, and for ad interim stay.
The High Court issued a rule and passed an order for interim stay on February 26, 1957.
The High Court made the rule absolute by its order dated March 26, 1957, taking the view that the attention of this Court had not been drawn to the interim 1249 settlement of the shop in the absence of an order of stay.
It appears further that during the pendency of the appeal in this Court, fresh settlement for the financial year 1957 58, took place towards the end of 1956, and the beginning of 1957.
The Tinsukia shop was settled with respondents I and 2 though the appellants also had jointly submitted a tender for the same.
The appellants and other parties preferred appeals against the said order of settlement made by the Deputy Commissioner.
The Excise Commissioner set aside the settlement by the Deputy Commissioner, and directed settlement in favour of the appellants by his order dated April 16, 1957.
Against that order, respondents I and 2 and others preferred appeals before the Excise Appellate Authority who, by an order dated June 3, 1957, dismissed the appeals.
Accordingly, the appellants were given possession of the shop on June 7, 1957.
The respondents I and 2 again moved the High Court for quashing the order of the Excise Appellate Authority, affirming that of the Excise Commissioner, and also prayed for the status quo being maintained.
The High Court admitted the petition and ordered " meanwhile, status quo ante be maintained.
" This took place on June 10, 1957.
In pursuance of the aforesaid order of the High Court, the appellants were dispossessed of the shop even though they had been put in possession only three days earlier.
This was done on a complete misapprehension of the true effect of the order of the High Court maintaining status quo ante.
If the High Court had passed its order in a less sophisticated and more easily understood language in that part of the country, perhaps, the party in possession, would not have been dispossessed of the shop settled with it.
The appellants moved the High Court against the Commissioner 's order directing possession to be given to the respondents 1 and 2.
The High Court issued a rule but refused to grant stay of the operation of the order directing possession to be given.
During the final hearing of the rule before the High Court, the appellants again moved a petition on July 5, 1957, for vacating the 1250 order of possession which was based on a misapprehension of the order of the High Court maintaining status quo ante, but apparently, no order was passed because possession had already been given to the respondents I and 2.
During the hearing of the rule by the High Court, an unfortunate incident occurred, for which the appellants cannot altogether be absolved of some responsibility, as a result of which, one of the learned judges constituting the Bench, namely, Deka J. expressed his unwillingness to proceed with the hearing of the case.
The hearing had, therefore, to be adjourned on July 15, 1957, until a new Bench could be constituted.
The appellants renewed their application already made on July 5, as aforesaid, for undoing the unintended effect of the order of the High Court, that the status quo ante was to continue.
But on July 30, the Chief Justice directed that the matter be placed before a Division Bench.
As there was no third judge at the time, the disposal of the case, naturally had to stand over until the third judge was available.
The matter of delivery of possession was again mentioned before the Division Bench of the Chief Justice and Deka J.
The High Court rejected the application on grounds which cannot bear a close scrutiny.
The petitioners also approached the Excise Appellate Authority, but it refused to reconsider the matter as the case was then pending before the High Court.
Again on August 14, 1957, a fresh application was made to the High Court, along with a copy of the orders passed by the Excise Appellate Authority and the Deputy Commissioner, Lakhimpur, giving delivery of possession to respondents 1 and 2.
But, this time, Deka J. refused to hear the matter, and naturally, the Chief Justice directed the matter to be placed before him, sitting singly.
on August 19, 1957, the matter was placed before the Chief Justice sitting singly, and he directed a rule to issue on the opposite party cited before that Court, to show cause.
Apparently, the learned Chief Justice treated the matter as a new case and not as an off shoot of the case already pending before the High Court.
The High Court closed for the long vacation on September 2, and was to reopen on 1251 November 3, 1957.
The vacancy of the third judge had not been filled till then, and as the appellants felt that they had been wrongfully deprived of their right to hold their shop, as a result of an erroneous interpretation of the order of the High Court, passed on June 10, as aforesaid, and as there was no prospect of the case being disposed of quickly, the appellants moved this Court and obtained special leave to appeal.
As is evident from the statement of facts in connection with each one of the appeals, set out above, these cases have followed a common pattern.
They come from the 'non prohibited areas in the State of Assam where sale of 'country spirit ' is regulated by licences issued by the authorities under the provisions of the Act.
Settlement of shops for the sale of such liquor is made for one year April I to March 31.
According to the present practice contained in Executive lnstructions, intending candidates for licences, have to submit tenders to the Deputy Commissioner for the Sadar Division and to Sub Divisional officers for Sub Divisions, in accordance with the terms of notices published for the purpose.
Such tenders are treated as strictly confidential.
Settlement is made by the Deputy Commissioner or the Sub Divisional Officer concerned, as the case may be, in consultation with an Advisory Committee consisting of 5 local members or less.
The selection of a particular tenderer is more or less a matter of administrative discretion with the officer making the settlement.
Under the Act, an appeal from an order of settlement made by a Deputy Commissioner or Sub Divisional officer, lies to the Commissioner of Excise, and from an order of the Commissioner of Excise to the Excise Appellate Authority whose decision becomes final.
Section 9 of the Act, dealing with appeal and revision, has undergone a series of amendments, and the section as it has emerged out of the latest amendment by the Amending Act The Assam Act 23 of 1955 which received the assent of the Governor of Assam on December 22, 1955, and was published in the Assam Gazette dated 159 1252 December 28, 1955, is in these terms: "9.
(1) Orders passed under this Act or under any rule made hereunder shall be appealable as follows in the manner prescribed by such rules as the State Government may make in this behalf (a) to the Excise Commissioner, any order passed by the District Collector or a Collector other than the District Collector, (b) to the Appellate Authority appointed by the State Government for the purpose, any order passed by the Excise Commissioner.
(2) In cases not provided for by clauses (a) and (b) of sub section (1), orders passed under this Act or under any rules made hereunder shall be appealable to such authorities as the State Government may prescribe.
(3) The Appellate Authority, the Excise Commissioner or the District Collector may call for the proceedings held by any officer or person subordinate to it or him or subject to its or his control and pass such orders thereon as it or he may think fit.
" Rules 339, 340, 341 and 345 of the Assam Excise Manual, have, thus, become obsolete and have been deleted as a result of the latest amendment aforesaid.
The power of hearing appeals and revisions under the Act, has been vested successively in the Board, the Assam Revenue Tribunal, the Commissioner for Hills Division and Appeals; and ultimately, under the amended section, in the Appellate Authority.
The history of the legislation relating to the highest Revenue Authority under the Act, has been traced in the judgment of this Court in the State of Assam vs A.N. Kidwai (supra), and need not be repeated here.
It is convenient, first, to deal with the general questions of public importance raised on behalf of the appellant in Civil Appeal No. 670 of 1957.
At the forefront of the arguments advanced on behalf of the Appellate Authority, was the plea that the several authorities already indicated, concerned with the settlement of excise shops like those in question in these appeals, are merely administrative bodies, and, 1253 therefore, their orders whether passed in the first instance or on appeal, should not be amenable to the writ jurisdiction or supervisory jurisdiction of the High Court under articles 226 and 227 of the Constitution.
If the matter had rested only with the provisions of the Act, apart from the rules made under section 36 of the Act, much could have been said in support ' of this contention.
As observed by this Court in the case of Cooverjee B. Bharucha vs The Excise Commissioner and the Chief Commissioner, Ajmer and others(1) there is no inherent right in a citizen to sell liquor.
It has further been observed by this Court in the recent case of the State of Assam vs A. N. Kidwai, (supra), at page 301 as follows: " A perusal of the Act and rules will make it clear that DO person has any absolute right to sell liquor and that the purpose of the Act and the rules is to control and restrict the consumption of intoxicating liquors, such control and restriction being obviously necessary for the preservation of public health and morals, and to raise revenue.
" It is true that no one has an inherent right to settlement of liquor shops, but when the State, by public notice, invites candidates for settlement to make their tenders, and in pursuance of such a notice, a number of persons make such tenders each one makes a claim for himself in opposition to the claims of the others, and the public authorities concerned with the settlement, have to choose from amongst them.
If the choice had rested in the hands of only one authority like the District Collector on his subjective satisfaction as to the fitness of a particular candidate without his orders being amenable to an appeal or appeals or revision, the position may have been different.
But section 9 of the Act has laid down a regular hierarchy of authorities, one above the other, with the right of hearing appeals or revisions.
Though the Act and the rules do not, in express terms, require reasoned orders to be recorded, yet, in the context of the subject matter of the rules, it becomes necessary for the (I) ; , 880.
1254 several authorities to pass what are called I speaking orders '.
Where there is a right vested in an authority created by statute, be it administrative or quasijudicial, to hear appeals and revisions, it becomes its duty to hear judicially, that is to say, in an objective manner, impartially and after giving reasonable opportunity to the parties concerned in the dispute, to place their respective cases before it.
In this connection, the observations of Lord Haldane at p. 132, and of Lord Moulton at p. 150, in Local Government Board vs Arlidge (1), to the following effect are very apposite: appeal is imposed, those whose duty it is to decide it must act judicially.
They must deal with the question referred to them without bias, and they must give to each of the parties the opportunity of adequately presenting the case made.
The decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice.
But it does not follow that the procedure of every such tribunal must be the same." Lord Moulton: " In the present case, however, the Legislature has provided an appeal, but it is an appeal to an administrative department of State and not to a judicial body.
It is said, truthfully, that on such an appeal the Local Government Board must act judicially, but this, in my opinion, only means that it must preserve a judicial temper and perform its duties conscientiously, with a proper feeling of responsibility, in view of the fact that its acts affect the property and rights of individuals.
Parliament has wisely laid down certain rules to be observed in the performance of its functions in these matters, and those rules must be observed because they are imposed by statute, and for no other reason, and whether they give much or little opportunity for what I may call quasi litigious procedure depends solely on what Parliament has thought right.
These rules are beyond the criticism of the Courts, and it is not their business to add to or (1) 1255 take away from them, or even to discuss whether in the opinion of the individual members of the Court they are adequate or not.
" The legal position has been very succinctly put in Halsbury 's Laws of England(1), as follows: "Moreover an administrative body, whose decision is actuated in whole or in part by questions of policy, may be under a duty to act judicially in the course of arriving at that decision.
Thus, if in order to arrive at the decision, the body concerned had to consider proposals and objections and consider evidence, if at some stage of the proceedings leading up to the decision there was something in the nature of a lis before it, then in the course of such consideration and at that stage the body would be under a duty to act judicially.
If, on the other hand, an administrative body in arriving at its decision has before it at no stage any form of lis and throughout has to consider the question from the point of view of policy and expediency, it cannot be said that it is under a duty at any time to act judicially.
Even where the body is at some stage of the proceedings leading up to the decision under a duty to act judicially, the supervisory jurisdiction of the Court does not extend to considering the sufficiency of the grounds for, or otherwise challenging, the decision itself.
" The provisions of the Act are intended to safeguard the interest of the State on the one band, by stopping, or at any rate, checking illicit distillation, and on the other band, by raising the maximum revenue consistently with the observance of the rules of temperance.
The authorities under the Act, with Sub divisional Officers at the bottom and the Appellate Authority at the apex of the 'hierarchy, are charged with those duties.
The rules under the Act and the executive instructions which have no statutory force but which are meant for the guidance of the officers concerned, enjoin upon those officers, the duty of seeing to it that shops are settled with persons of character and experience in the line, subject to certain reservations in (1) Vol.
3rd Edn., PP.
56 57.
1256 favour of tribal population.
Except those general con siderations, there are no specific rules governing the grant of leases or licences in respect of liquor shops, and in a certain contingency, even drawing of lots, is provided for, vide Executive Instructions 110 at p. 174 of the Manual.
The words of sub section
(3) of section 9 as amended, set out above, vest complete discretion in the Appellate Authority, the Excise Commissioner or the District Collector, to 'pass such orders thereon as it or he may think fit. ' The sections of the Act do not make any reference to the recording of evidence or hearing of parties or even recording reasons for orders passed by the authorities aforesaid.
But we have been informed at the bar that as a matter of practice, the authorities under the Act, hear counsel for the parties, and give reasoned judgments, so as to enable the higher authorities to know why a particular choice has been made.
That is also apparent from the several orders passed by them in course of these few cases that are before us.
But when we come to the rules relating to appeals and revisions, we find that the widest scope for going up in appeal or revision, has been given to persons interested, because r. 344 only lays down that no appeal shall lie against the orders of composition, thus, leaving all other kinds of orders open to appeal or revision.
Rule 343 provides that every memorandum of appeal shall be presented within one month from the date of the order appealed against, subject to the requisite time for obtaining a certified copy of the order being excluded.
Rule 344 requires the memorandum of appeal to be accompanied by a certified copy of the order appealed against.
The memorandum of appeal has to be stamped with a requisite court fee stamp.
Rule 343 was further amended by the Notification dated March 14, 1957, by adding the following proviso and explanations to that rule: " Provided further that the competent Appellate Authority shall have the power to admit the appeal after the prescribed period of limitation when the appellant satisfies the Appellate Authority that he had sufficient cause for not preferring the appeal 1257 within such period.
Explanation (1).
The fact that the appellant was misled by any order, practice or judgment of any Appellate Authority in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this Rule.
Explanation (2).
The fact that the Appellate Authority was unable to function for any period by reason of any judicial pronouncement shall be sufficient cause within the meaning of this Rule.
The amendment shall be deemed to have been made on 23rd May, 1956, and shall have retrospective effect since that date.
" These rules, read along with the recent amendments, set out above, approximate the procedure to be followed by the Appellate Authorities, to the regular procedure observed by courts of justice in entertaining appeals.
As would appear from the ruling of this Court at p. 304, where the provisions and effect of the Assam Revenue Tribunal (Transfer of Powers) Act, 1948, (Assam IV of 1948) have been set out, the ultimate jurisdiction to hear appeals and revisions, was divided between the Assam High Court and the Authority referred to in section 3(3) of that Act.
Appeals and revisions arising out of cases covered by the provisions of the enactments specified in Schedule 'A ' to that Act, were to lie in and to be heard by the Assam High Court, and the jurisdiction to entertain appeals and revisions in matters arising under the provisions of the enactments specified in Schedule 'B ' to that Act, was vested in the Authority to be set up under section 3(3), that is to say, for the purposes of the present appeals before us, the Excise Appellate Authority.
Thus, the Excise Appellate Authority, for the purposes of cases arising under the Act, was vested with the power of the highest appellate Tribunal, even as the High Court was, in respect of the other group of cases.
That does not necessarily mean that the Excise Appellate Authority was a Tribunal of co ordinate jurisdiction with the High Court, or that that Authority was not amenable to the supervisory jurisdiction of the 1258 High Court under articles 226 and 227 of the Constitution.
But the juxtaposition of the two parallel highest Tribunals, one in respect of predominantly civil cases, and the other, in respect of predominantly revenue cases (without attempting any clear cut line of demarcation), would show that the Excise Appellate Authority was not altogether an administrative body which had no judicial or quasi judicial functions.
Neither the Act nor the rules made thereunder, indicate the grounds on which the first Appellate Authority, namely, the Excise Commissioner, or the second Appellate Authority (the Excise Appellate Authority), has to exercise his or its appellate or revisional powers.
There is no indication that they make any distinction between the grounds of interference on appeal and in revision.
That being so, the powers of the Appellate Authorities in the matter of settle ment, would be co extensive with the powers of the primary authority, namely, the District Collector or the Sub Divisional Officer.
See in this connection, the observations of the Federal Court in Lachmeshwar Prasad Shukul and others vs Keshwar Lal Chaudhuri and others (1), and of this Court in Ebrahim Aboobakar and another vs Custodian General of Evacuee Property(2).
In the latter case, this Court, dealing with the powers of the Tribunal (Custodian General of the Evacuee Property), under section 24 of Ordinance No. 27 of 1949, observed: " Like all courts of appeal exercising general jurisdiction in civil cases, the respondent has been constituted an appellate court in words of the widest amplitude and the legislature has not limited his jurisdiction by providing that such exercise will depend on the existence of any particular state of facts.
Thus, on a review of the provisions of the Act and the rules framed thereunder, it cannot be said that the authorities mentioned in section 9 of the Act, pass purely administrative orders which are beyond the ambit of the High Court 's power of supervision and control.
Whether or not an administrative body or (1) , 102.
(2) ; , 704.
1259 authority functions as a purely administrative one or in a quasi judicial capacity, must be determined in each case, on an examination of the relevant statute and the rule,,; framed thereunder.
The first contention raised on behalf of the appellant must, therefore, be overruled.
Now, turning to the merits of the High Court 's order, it was contended on behalf of the appellant that the High Court had misdirected itself in holding that the Appellate Authority had exceeded its jurisdiction in passing the order it did.
There is no doubt that if the Appellate Authority whose duty it is to determine questions affecting the right to settlement of a liquor shop, in a judicial or quasi judicial manner, acts in excess of its authority vested by law, that is to say, the Act and the rules thereunder, its order is subject to the controlling authority of the High Court.
The question, therefore, is whether the High Court was right in holding that the Appellate Authority had exceeded its legal power.
In this connection, it is best to reproduce, in the words of the High Court itself, what it conceived to be the limits of the appellate jurisdiction: "In other words, it is not for the Appellate Authority to make the choice, since the choice has already been made by the officers below; and it is not only where the choice is perverse or illegal and not in accordance with the Rules that the Appellate Authority can interfere with the order and make its own selected (sic.) out of the persons offering tenders.
If the Appellate bodies chose to act differently and consider themselves free to make their own choice of the person to be offered settlement irrespective of the recommendations of the Deputy Commissioner or the Officer conducting the settlement, the Appellate bodies will be obviously exceeding the jurisdiction, which they possess under the law or going beyond the scope of their authority as contemplated by the Rules.
" In our opinion, in so circumscribing the powers of the Appellate Authority, the High Court has erred.
See in this connection, the decision of this Court in Raman 160 1260 and Raman Ltd. vs The State of Madras(1).
In that case, this Court dealt with the powers of the State Government, which had been vested with the final authority in the matter of grant of stage carriage permits.
This Court held that as the State Government had been constituted the final authority under the "Motor Vehicles Act, to decide as between the rival claimants for permits, its decision could not be interfered with under article 226 of the Constitution, merely because the Government 's view may have been erro neous.
In the instant cases, the Appellate Authority is contemplated by section 9 of the Act, to be the highest authority for deciding questions of settlement of liquor shops, as between rival claimants.
The appeal or revision being undefined and unlimited in its scope, the highest authority under the Act, could not be deprived of the plenitude of its powers by introducing considerations which are not within the Act or the rules.
It is true that the Appellate Authority should not lightly set aside the selection made by the primary Authority, that is to say, a selection made by a Subdivisions Officer or by a District Collector, should be given due weight in view of the fact that they have much greater opportunity to know local conditions and local business people than the Appellate Authority, even as the appeal courts are enjoined not to interfere lightly with findings of fact recorded by the original courts which had the opportunity of seeing witnesses depose in court, and their demeanour while deposing in court.
But it is not correct to hold that because the Appellate Authority, in the opinion of the High Court, has not observed that caution, the choice made by it, is in excess of its power or without jurisdiction.
The next ground of attack against the order of the High Court, under appeal, was that the High Court had erred in coming to the conclusion that there had been a failure of natural justice.
In this connection, the High Court has made reference to the several affidavits filed on either side, and the order in which they (1) ; 1261 had been filed, and the use made of those affidavits or counter affidavits.
As already indicated, the rules make no provisions for the reception of evidence oral or documentary, or the hearing of oral arguments, or even for the issue of notice of the hearing to the parties concerned.
The entire proceedings are marked by a complete lack of formality.
The several authorities have been left to their own resources to make the best selection.
In this connection, reference may be made to the observations of this Court in the case of New Prakash Transport Co., Ltd. vs New Suwarna Transport Co., Ltd. (1).
In that case, this Court has laid down that the rules of natural justice vary with the varying constitutions of statutory bodies and the rules prescribed by the Act under which they function ; and the question whether or not any rules of natural justice had been contravened, should be decided not under any pre conceived notions, but in the light of the statutory rules and provisions.
In the instant case, no such rules have been brought to our notice, which could be said to have been contravened by the Appellate Authority.
Simply because it viewed a case in a particular light which may not be acceptable to another independent tribunal, is no ground for interference either under article 226 or article 227 of the Constitution.
It remains to consider the last contention raised on behalf of the appellants in these cases, namely, whether there has been any error apparent on the face of the record, in the order of the Appellate Authority, which would attract the supervisory jurisdiction of the High Court.
In this connection, the following observations of the High Court are relevant: " But the most glaring error on face of the order of the Appellate Authority is that it does not even refer to the report of the Deputy Commissioner on which the Excise Commissioner had so strongly relied.
In my opinion, it was under the Rules obligatory on the Appellate Authority to consider that report before disposing of the appeal, and in failing to do so, the officer (1) 1262 acted arbitrarily and in excess of his powers as an Appellate Authority.
" It may be that durinly the prolonged hearing of these cases before the High Court where, counsel for the different parties placed their respective view points after making copious references to the documents, the ', High Court was greatly impressed that the order of settlement in one case (Murmuria shop), made by the Deputy Commissioner, as confirmed by the Excise Commissioner, was the right one and that the choice made by the Appellate Authority did not commend itself to the High Court.
It may further be that the conclusions of fact of the High Court were more in consonance with the entire record of the proceedings, and that the choice made by the ultimate Revenue Authority, was wrong.
But, under the law as it stands, the High Court exceeded its powers in pronouncing upon the merits of a controversy which the Legislature has left to the discretion of the Appellate Authority.
But is that a mistake apparent on the face of the record, as understood in the context of article 226 of the Constitution ? That leads us to a consideration of the nature of the error which can be said to be an error apparent on the face of the record which would be one of the grounds to attract the supervisory jurisdiction of the High Court under article 226 of the Constitution.
The ancient writ of certiorari which now in England is known as the order of certiorari, could be issued on very limited grounds.
These grounds have been discussed by this Court in the cases of: Parry & Co. vs Commercial Employee 's Association, Madras (1), Veerappa Pillai vs Raman and Raman Ltd., and others (2), Ibrahim Aboobaker vs Custodian General of Evacuee Property (3), T. C. Basappa vs T. Nagappa All these cases have been considered by this Court in (1) ; (2) ; (3) ; (4) ; 1263 the case of Hari Vishnu Kamath vs Syed Ahmad Ishaque and others (1).
Venkatarama Ayyar J., speaking for the full Court, laid down four propositions bearing on the character and scope of the writ of certiorari as established upon the authorities.
The third proposition out of those four, may be stated in the words of that learned Judge, as follows: " The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction.
One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous.
" While considering the fourth proposition whether the writ can be issued in the case of a decision which was erroneous in law, after considering the recent Authorities, the same learned Judge, in the course of his judgment, at p. 1123, has observed as follows: " It may therefore be taken as settled that a writ of certiorari could be issued to correct an error of law.
But it is essential that it should be something more than a mere error: it must be one which must be manifest on the face of the record.
" The High Court appears to have been under the impression that the expression "error apparent on the face of the record" may also be in respect of findings of fact.
For example, in Civil Appeal No. 668 of 1957, relating to Jorhat shop, the High Court has observed as follows: " The Appellate Authority further reinforced its suspicion by mentioning that Dharmeswar, his father and brother are summoned in connection with some complaint, but that was a matter purely extraneous, ,to speak the least and it could have found that the complaint was filed after the settlement.
The complaint had no reference to any offence of smuggling or the like as has been conceded.
These were errors ap.
parent on the face of the record.
" Later, in the course of the same judgment, it has been observed as follows: " This is another instance where I find that the Excise Appellate Authority has misconceived its (1) ; , 1121.
1264 powers as such and purported to decide the appeal either on errors of record, speculations or on irrelevant considerations, irrespective of all that happened in the earlier stages of the matter.
It starts with an apparent error of record when it says that in the judgment of the Excise Commissioner it finds 'a clear admission that Shri Garela Kalita, father of Shri Dharmeswar Kalita, is a suspected smuggler. ' In fact, there was no such admission.
It was held by the Commissioner on the contrary that 'the learned Deputy Commissioner and members of the Advisory Committee thought that the major son who bears an excellent character should not be punished for the alleged sin of his father '.
" These excerpts from the judgment of the High Court are not exhaustive, but only illustrative of the observation that the High Court appears to have treated an error of fact on the same footing as an error of law apparent on the face of the record.
The question, naturally, arises whether an error of fact can be invoked in aid of the power of the High Court to quash an order of a subordinate court or Tribunal.
The High Court would appear to have approximated it to an 'error apparent on the face of the record ' as used in r. 1 of 0.
47 of the Civil Procedure Code, as one of the grounds for review of a judgment or order; but that is clearly not the correct position.
Ordinarily, a mistake of law in a judgment or an order of a court, would not be a ground for review.
It is a mistake or an error of fact apparent on the face of the record, which may attract the power of review as contemplated by r. I of 0.
But is the power of a High Court under article 226 of the Constitution, to interfere on certiorari, attracted by such a mistake, and not the reverse of it, in the sense that it is only an error of law apparent on the face of the record, which can attract the supervisory jurisdiction of a High Court ? This question, so far as we know, has not been raised in this form in this Court in any one of the previous decisions bearing on the scope and character of the writ of certiorari.
It is, therefore, necessary to examine this question directly raised in this batch of appeals, 1265 because, in each case, the High Court has been invited to exercise its powers under article 226, to issue a writ of certiorari on the specific ground that the orders impugned before it, had been vitiated by errors apparent on the face of the record errors not of law but of fact.
The ancient case of the Queen vs James Bolton(1), is treated as a landmark on the question of the power to issue a writ or order of certiorari.
That was a case in which an order of justices for delivering up a house to parish officers, under a statute, was called up on certiorari.
Lord Denman C. J. while discharging the rule, made the following observations in the course of his judgment, which have been treated as authoritative and good law even now: " The first of these is a point of much importance, because of very general application ; but the principle upon which it turns is very simple: the difficulty is always found in applying it.
The case to be supposed is one like the present, in which the Legislature has trusted the original, it may be (as here) the final, jurisdiction on the merits to the magistrates below; in which this Court has no jurisdiction as to the merits either originally or on appeal.
All that we can then do, when their decision is complained of, is to see that the case was one within their jurisdiction, and that their proceedings on the face of them are regular and according to law.
Even if their decision should upon the merits be unwise or unjust, on these grounds we cannot reverse it.
" While dealing with the argument at the Bar, complaining of the unsoundness of the conclusions reached by the magistrates and the hardships to be caused by their erroneous order, the Court made the following observations which are very apposite to the facts and circumstances disclosed in the instant appeals, and which all courts entrusted with the duty of administering law, should bear in mind, so that they may not be deflected from the straight path of enforcing the law, by considerations based on hardship or on vague (1) [1841] (I) Queen 's Bench p. 66, 72, 76; 113 English Reports I054,1057,1058.
1266 ideas of what is sometimes described as justice of the cause: " Beyond this we cannot go.
The affidavits, being before us, were used OD the argument; and much was said of the unreasonableness of the conclusion drawn by the magistrates, and of the hardship on the defendant if we would not review it, there being no appeal to the sessions.
We forbear to express any opinion on that which is not before us, the propriety of the conclusion drawn from the evidence by the magistrates: they and they alone were the competent authority to draw it; and we must not constitute ourselves into a Court of Appeal where the statute does not make us such, because it has constituted no other.
It is of much more importance to hold the rule of law straight than, from a feeling of the supposed hardship of any particular decision, to. interpose relief at the expense of introducing a precedent full of inconvenience and uncertainty in the decision of future cases" The case of Reg vs Bolton (supra) was approved and followed by the Privy Council in the case of the King vs Nat B 11 Liqutors, Limited (1).
In that case their Lordships of the Judicial Committee held that a conviction by a magistrate for a non indictable offence, cannot be quashed on certiorari on the ground that the record showed that there was no evidence to support the conviction, or that the magistrate had misdirected himself in considering the evidence.
It was further laid down that the absence of evidence did not affect the jurisdiction of the magistrate to try the charge.
In the course of their judgment, their Lord.
ships further observed that the law laid down in Reg vs Bolton (supra) has never been seriously questioned in England, and that the same rules were Applicable to other parts of the Commonwealth, except in so far as they may have been modified by statute.
They also observed that the decision in Reg vs Bolton (supra) undoubtedly is a landmark in the history of certiorari, for it summarises in an impeccable form the principles of its application. .
But latterly, the rule (1) 1267 laid down in Bolton 's case, appears to have been slurred over in some decided cases, in England, which purported to lay down that a writ or order of certiorari could be obtained only if the order impugned disclosed an error of jurisdiction, that is to say, complete lack of jurisdiction or excess of jurisdiction or the refusal to exercise jurisdiction, and not to correct an error of law, even though apparent on the face of the record.
The question was brought to a head in the case of Rex vs Northumberland Compensation Appeal Tribunal (1).
It arose out of an application for an order of certiorari for quashing a decision reached by the respondent Northumberland Compensation Appeal Tribunal.
Lord Goddard C. J. began his judgment by observing that the point involved in the case was " of the very greatest importance " which had " necessitated the examination of a large number of cases and consideration of the principles which apply to the doctrine of certiorari ".
He further observed that certiorari is a remedy of a very special character.
He, then, discussed the object and scope of the writ of certiorari and the history of the jurisdiction as exercised in the English courts.
He then dealt with the contention directly raised for the determination of the court that an order of certiorari, can issue only to remove a defect of jurisdiction and that it does not extend to removing an order out of the way of the parties on account of a mistake of law apparent on the face of the record.
The court then considered the relevant authorities, and came to the conclusion that it was wrong to hold that the ground of interference on certiorari, was only an error or excess of jurisdiction, and that it did not extend to correction of an error of law apparent on the face of the record.
The Lord Chief Justice then pointed out that the examination of the authorities bearing on the exercise of the power of certiorari, yielded the result that it was open to the High Court to examine the record and to see whether or not there was an error of law apparent on the face of the record.
The Lord Chief Justice concluded his observations with these remarks: (1) 161 1268 " The tribunal have told us what they have taken into account, what they have disregarded, and the contentions which they accepted.
They have told us their view of the law, and we are of opinion that the construction which they placed on this very complicated set of regulations was wrong.
" This decision was challenged, and on appeal, the Court of Appeal dealt with this point in Rex vs Northumberland, Compensation Appeal Tribunal(1).
The Court of Appeal affirmed the proposition laid down by the High Court that an order for certiorari, can be granted and the decision of an inferior court such as a statutory tribunal, quashed on the ground of an error of law apparent on the face of the record.
Singleton L. J. in the course of his judgment, observed that an error on the face of the proceedings, which in that case was an error of law, has always been re. cognized as one of the grounds for the issue of an order of certiorari.
Denning L. J. also, in the course of his judgment, examined the question whether the High Court could intervene to correct the decision of a statutory tribunal which is erroneous in point of law.
On an examination of the authorities from ancient times, the Lord Justice made the following observations: " Of recent years the scope of certiorari seems to have been somewhat forgotten.
It has been supposed to be confined to the correction of excess of jurisdiction, and not to extend to the correction of errors of law ; and several judges have said as much.
But the Lord Chief Justice has, in the present case, restored certiorari to its rightful position and shown that it can be used to correct errors of law which appear on the face of the record even though they do not go to jurisdiction.
I have looked into the history of the matter, and find that the old cases fully support all that the Lord Chief Justice said.
Until about 100 years ago, certiorari was regularly used to correct errors of law on the face of the record.
It is only within the last century that it has fallen into disuse, and that is only because there has, until recently, been little occasion for its exercise.
(I) ; 1269 Now, with the advent of many new tribunals, and the plain need for supervision over them, recourse must once again be had to this well tried means of control.
" The other Lord Justice who took part in the hearing of the appeal, Morris L. J. also examined that question and concluded as follows: " It is plain that certiorari will not issue as the, cloak of an appeal in disguise.
It does not lie in order to bring up an order or decision for rehearing of the issue raised in the proceedings.
It exists to correct error of law where revealed on the face of an order or decision, or irregularity, or absence of, or excess of, jurisdiction where shown.
" I It is clear from an examination of the authorities of this Court as also of the courts in England, that one of the grounds on which the jurisdiction of the High Court on certiorari may be invoked, is an error of law apparent on the face of the record and not every error either of law or fact, which can be corrected by a superior court, in exercise of its statutory powers as a court of appeal or revision.
So far as we know, it has never been contended be.
fore this Court that an error of fact, even though apparent on the face of the record, could be a ground for interference by the court exercising its writ jurisdiction.
No ruling was brought to our notice in support ,of the proposition that the court exercising its powers under article 226 of the Constitution, could quash an order of an inferior tribunal, on the ground of a mistake of fact apparent on the face of the record.
But the question still remains as to what is the legal import of the expression 'error of law apparent on the face of the record. ' Is it every error of law that can attract the supervisory jurisdiction of the High Court, to quash the order impugned ? This court, as observed above, has settled the law in this respect by laying down that in order to attract such jurisdiction, it is essential that the error should be something more than a mere error of law; that it must be one which is manifest on the face of the record.
In this respect, the law in India and the law in England, are, therefore, the same.
It is also clear, on an examination of all 1270 the authorities of this Court and of those in England, referred to above, as also those considered in the several judgments of this Court, that the Common Law writ, now called order of certiorari, which was also adopted by our Constitution, is not meant to take the place of an appeal where the statute does not confer a right of appeal.
Its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of the law which it was meant to administer.
,Mere formal or technical errors, even though of law, will not be sufficient to attract this extraordinary jurisdiction.
The principle underlying the jurisdiction to issue a writ or order of certiorari, is no more in doubt, but the real difficulty arises, as it often does, in applying the principle to the particular facts of a given case.
In the judgments and orders impugned in these appeals, the High Court has exercised its supervisory jurisdic note in respect of errors which cannot be said to be errors of law apparent on the face of the record.
If at all they are errors, they are errors in appreciation of documentary evidence or affidavits, errors in drawing inferences or omission to draw inferences.
In other words, those are errors which a court sitting as a court of appeal only, could have examined and, if necessary, corrected.
As already indicated, the Appellate Authority had unlimited jurisdiction to examine and appreciate the evidence in the exercise of its appellate or revisional jurisdiction.
Section 9(3) of the Act, gives it the power to pass such orders as it thought fit.
These are words of very great amplitude.
The jurisdiction of the Appellate Authority, to entertain the appeals, has never been in doubt or dispute.
Only the manner of the exercise of its appellate jurisdiction was in controversy, It has not been shown that in exercising its powers, the Appellate Authority disregarded any mandatory provisions of the law.
The utmost that has been suggested, is that it has not carried out certain Executive Instructions.
For example, it has been said that the Appellate Authority did not observe the 1271 instructions that tribal people have to be given certain preferences, or, that persons on the debarred list, like ,smugglers, should be kept out (see p. 175 of the Manual).
But all these are only Executive Instructions which have no statutory force.
Hence, even assuming, though it is by no means clear, that those instructions have been disregarded, the non observance of those instructions cannot affect the power of the Appellate Authority to make its own selection, or affect the validity of the order passed by it.
The High Court, in its several judgments and orders, has scrutinized, in great detail, the orders passed by the Excise Authorities under the Act.
We have not thought it fit to examine the record or the orders below in any detail, because, in our opinion, it is not the function of the High Court or of this Court to do so.
The jurisdiction under article 226 of the Constitution is limited to seeing that the judicial or quasi judicial tribunals or administrative bodies exercising quasijudicial powers, do not exercise their powers in excess of their statutory jurisdiction, but correctly administer the law within the ambit of the statute creating them or entrusting those functions to them.
The Act has created its own hierarchy of officers and Appellate authorities, as indicated above, to administer the law.
So long as those Authorities function within the letter and spirit of the law, the High Court has no concern with the manner in which those powers have been exercised.
In the instant cases, the High Court appears to have gone beyond the limits of its powers under articles 226 and 227 of the Constitution.
In one of the cases, the High Court has observed that though it could have interfered by issuing a writ under article 226 of the Constitution, they would be content to utilize their powers of judicial superintendence under article 227 of the Constitution vide its judgment dated July 31, 1957, in appeals relating to Murmuria shop (Civil Appeals Nos. 669 and 670 of 1957).
In exercise of that power, the High Court set aside the order of the Appellate Authority, and directed it to re hear the appeal 'according to law in the light of the principles indicated in this judgment '.
1272 A Constitution Bench of this Court examined the scope of article 227 of the Constitution in the case of Waryam Singh and another vs Amarnath a rid another (1).
This Court, in the course of its judgment, made the following observations at p. 571 : " This power of superintendence conferred by article 227 is, as pointed out by Harries C. J. in Dalmia Jain Airways Ltd. vs Sukumar Mukherjee (2), to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors.
" It is, thus, clear that the powers of judicial interference under article 227 of the Constitution with orders of judicial or quasi judicial nature, are not greater than the powers under article 226 of the Constitution.
Under article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record.
But under article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority.
Hence, interference by the High Court, in these cases, either under article 226 or 227 of the Constitution, was not justified.
After having dealt with the common arguments more or less applicable to all the cases, it remains to consider the special points raised on behalf of the respondents in Civil Appeal No. 672 of 1957, relating to the Tinsukia country spirit shop.
It was strenuously argued that the appeal was incompetent in view of the fact that the rule issued by the High Court, was still pending, and that this Court does not ordinarily, entertain an appeal against an interlocutory order.
It is true that this Court does not interfere in cases which have not been decided by the High Court, but this case has some extraordinary features which attracted the notice of this Court when special leave to appeal was granted.
As already stated, the shop in question was settled with the appellants by the Excise Commissioner, and his order was upheld by the Appellate Authority.
Accordingly, the appellants, (1) ; (2) A.I. R. (195i) Cal.
1273 had been put in possession of the shop on June 7, 1957.
The High Court, while issuing the rule, passed an order on the stay application, which, as already indicated, had been misunderstood by the District Excise authorities, and the appellants were dispossessed and the respondents I and 2 put back in possession, without any authority of law.
This was a flagrant interference with the appellants ' rights arising out of the settlement made in their favour by the highest revenue authorities.
The High Court had not and could not have authorized the dispossession of the persons rightfully in possession of the shop.
The appellants brought this flagrant abuse of power to the notice of the High Court several times, but the High Court felt unduly constrained to permit the wrong to continue.
We heard the learned counsel for the respondents at great length as to whether he could justify the continuance of this undesirable and unfortunate state of affairs.
It has to be remembered that the appellants, as a result of fortuitous circumstances, had been deprived of the possession of the shop during the best part of the financial year 1956 57 The appellants had been deprived of the fruits of their hard won victory in the revenue courts, without any authority of law, and the High Court failed to right the wrong in time, though moved several times.
In these circumstances, we found it necessary to hear both the parties on the merits of the orders passed by the Commissioner of Excise and the Appellate Authority, in favour of the appellants, against which, the respondents had obtained a rule.
After having heard both sides, we have come to the conclusion that no grounds have been made out for interference by the High Court, under its powers under articles 226 and 227 of the Constitution.
This case shares the common fate of the other cases before us, of having run through the entire gamut of the hierarchy created under the Act, read along with the amending Act and the rules thereunder.
We do not find any grounds in the orders of the Excise Authorities which could attract the supervisory jurisdiction of the High Court, there being no error of law apparent on the face of the record, 1274 or a defect of jurisdiction in the Authorities whose orders have been impugned in the High Court.
We would, however, like to make it clear that we are interfering with the interlocutory order passed by the High Court in this case because of its unusual and exceptional features.
It is clear that our decision on the main points urged in the other appeals necessarily leads to the inference that, even if all the allegations made by the respondents in their petition before the Assam High Court are accepted as true, there would be no case whatever for issuing a rule.
Indeed, the respondent found it difficult to resist the appellant 's argument that, if the other appeals were allowed on the general contentions raised by the appellants, the dismissal of his petition before the Assam High Court would be a foregone conclusion.
It is because of these special circumstances that we have decided to interfere with the interlocutory order in this case in the interests of justice.
As a result of these considerations, the appeals must be allowed and the orders passed by the High Court in the several cases, set aside.
On the question of costs, we direct that the appellants in each case, should get their costs here and in the High Court, except the appellant in Civil Appeal No. 670, who has failed on the main point raised on his behalf, and who, therefore, must bear his own costs.
Appeals allowed.
[/INST]The High Court has no power under article 226 of the Constitu tion to issue a writ of certiorari in order to quash an error of fact, even though it may be apparent on the face of the record.
It can do so only where the error is one of law and that is apparent on the face of the record.
Any error of law or fact which it can correct as a court of appeal or revision cannot be a ground for the exercise of its power under that Article.
Hari Vishnu Kamath vs Syed Ahmed Ishaque and others, [1955] I S.C.R. 1104, relied on.
Queen vs James Bolton, (1841) (1) Queen 's Bench 66, King vs Nat Bell Liquors, Limited, , Rex vs Northumberland Compensation Appeal Tribunal, (1951) 1 K.B. 711 and Rex vs Northumberland Compensation Appeal Tribunal, ; , referred to.
The jurisdiction of the High Court under article 226 of the Constitution is limited to seeing that the judicial or quasi judicial tribunals or administrative bodies exercising quasi judicial powers, do not exceed their statutory jurisdiction and correctly administer the law laid down by the statute under which they act.
So long as the hierarchy of officers and Appellate authorities created by a statute function within their ambit, the manner in which they do so can be no ground for interference.
The powers of judicial supervision of the High Court under article 227 Of the Constitution are not greater than those under article 226 and must be limited to seeing that the tribunal functions within the limits of its authority.
Waryam Singh and another vs Amarnath and another; , , referred to.
Consequently, where the High Court in exercise of its powers under articles 226 and 227 Of the Constitution interfered with 1241 certain orders made by the Excise Appellate Authority under the Assam Excise Act as being in excess of its jurisdiction on the ground that they were vitiated by errors of fact apparent on the face of the record, such interference was without jurisdiction and the orders passed by the High Court must be set aside.
Held further, that where an appellate Authority, as in the instant case, is constituted the highest authority by the statute for deciding as between the claims of rival parties, its powers cannot be circumscribed nor can it be held to have acted in excess of its powers or without jurisdiction on considerations foreign to the statute or the rules.
Raman and Raman Ltd. vs The State of Madyas, [1956] S.C.R. 256, referred to.
In the absence of anything to show that the appellate Authority had contravened any rules of natural justice, which must be understood in the context of the ' rules laid down by the statute itself, it would be wrong to say that there has been a failure of natural justice simply because the view it took of the matter might not be acceptable to another tribunal.
New Prakask Transport Co. Ltd. vs New Suwarna Transport Co. Ltd., , relied on.
The question whether an administrative authority functions merely in an administrative or quasi judicial capacity must be determined on an examination of the statute and its rules under which it acts, and there can be no doubt on such examination that the Authorities mentioned in section 9 of the Eastern Bengal and Assam Excise Act, 1910, as amended by Assam Act 23 Of 1953, are no mere administrative bodies and their orders are, therefore, amenable to the powers of control and supervision vested in the High Court by articles 226 and 227 Of the Constitution.
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<s>[INST] Summarize the judgementminal Appeal No. 119 of 57.
Appeal by special leave from the judgment and order dated the 24th August, 1955, of the Calcutta High Court in Criminal Revision No. 596 of 1955.
C. B. Agarwala and Sukumar Ghose, for the appellant.
B. Sen and S.N. Mukherjee, for the respondents.
March 23.
The Judgment of the Court WAS delivered by SHAH, J.
M/s.
Lalji Raja & Sons who will hereinafter be referred to as the respondents are the owners of an oil seed pressing factory known as the Gouranga Oil Mill situated within the limits of the Bankura Municipality in the State of West Bengal.
For extracting oil, the respondents import mustard seed from different areas.
The respondents also hold a license for the @ale of mustard Seed.
On the application of the Sanitary Inspector of the Bankura Municipality, the Sub Divisional Officer, Bankura, issued a search warrant directing seizure of 900 bags of "rotten and decomposed mustard seed", 600 bags stored in the mill godown and 300 bags stored 360 in the court yard of the rice mill at Hanseswar Maji.
Pursuant to the search, a large quantity of mustard seed spread out for drying in the Gouranga Oil Mill was seized, and certain bags lying in the rice mill were also seized.
On the report made by the Sanitary Inspector, the Chairman of the Municipality applied to the District Magistrate of Bankura on March 10, 1950, for action under sections 431 and 432 of the Bengal Municipal Act, No. XV of 1932, alleging that the mustard seed seized was " in a highly decomposed state and gave out an offensive stench" and that the same was unwholesome and unfit for human consumption.
The proceedings started on the petition of the Chairman of the Municipality had a chequered career.
it is unnecessary to sit out for the purposes of this appeal the diverse orders which were made from time to time by the District Magistrate and which were set aside by the High Court of Judicature at Calcutta.
It may be sufficient to state that on May 26, 1950, the District Magistrate ordered restoration of the mustard seed bags to the respondents and that order was set aside bags Division Bench of the Calcutta High Court in revision.
Another order passed by the District Magi strate in April 1951 directing that the contents of the bags be disposed of as " manure or fodder " was set aside by the Calcutta High Court and the proceedings were directed to be retried.
The District Magistrate again held an enquiry and by his order dated November 10, 1954, held that the mustard seed was lawfully seized in accordance with the provisions of the Bengal Municipal Act, 1932, that it was unwholesome and unfit for human consumption on the date of seizure and directed in exercise of the powers under section 431(2) of the Act that the same be made over to the Commissioners of the Bankura Municipality for disposal either as manure.
or as cattle feed.
The High Court at Calcutta by order dated August 24, 1955, in exercise of its revisional jurisdiction, set aside the order of the District Magistrate holding that section 431 of the Bengal Municipal Act under which the order was made, had no application to a case of seizure of unwholesome food seized under a warrant issued under section 430. 361 Against the order of the High Court, this appeal is filed with special leave.
The only question which falls to be determined in this appeal is whether articles of food seized under a warrant issued by a Magistrate in exercise of the powers under section 430 of the Bengal Municipal Act may be ordered to be destroyed under section 431(2) of the Act.
In order to determine this question, it is necessary to refer to certain provisions of the Bengal Municipal Act, 1932.
Section 421 prohibits, amongst other acts, selling or storing for sale of unwholesome articles to be used for human consumption.
Section 427 (in so far as it is material) authorizes the Commissioners and certain other officers of a Municipality to enter upon and inspect any place in which any article of food is deposited for the purpose of sale or preparation for sale or to which any article of food intended for human consumption is brought for such purpose, and also to inspect the articles of food which may be found in the place inspected.
Clause (1) of section 428 confers upon the Commissioners and the officers designated in section 427 power to seize articles of food intended for human consumption if, in the course of inspection, it appears that the same are unwholesome or unfit for human consumption.
Section 429 provides that the articles of food referred to in section 428 which have been seized under that section may, with the written consent of the owner or the person in whose possession they are found, be ordered to be destroyed.
If the consent of the owner or the person in possession is not obtained and the articles are of a perishable nature, the officer seizing the same may take them before a Magistrate who may, if it appears to him that the articles are unsound or unwholesome or unfit as human food, condemn the same or order them to be destroyed.
Section 430 (in so far as it is material) provides that if any Magistrate is satisfied on the application of the Commissioners, Health Officer, Sanitary Inspector or any other officer authorized by the Commissioner in this behalf that there is just cause to believe that any food which is unsound, unwholesome or unfit for human food is in the possession of any person for the 362 purpose of being sold or offered or exposed for sale within the limits of the Municipality for such consumption, he may grant a warrant authorizing entry upon the premises of such person and search for and seizure of such articles of food.
Section 431 by the 1st subsection (in so far as it is material) provides that where any article of food, seized under section 428 is not destroyed by consent under sub section 1 of section 429 or when an article of food so seized which is perishable is not dealt with under sub section 2 of that section, it shall be taken before a Magistrate as soon as may be after such seizure.
Sub section 2 provides that if it appears to the Magistrate that any such food is unsound, unwholesome or unfit, for human food, he shall cause the same to be destroyed or to be otherwise disposed of by the Commissioners so as not to be capable of being used as human food.
It is evident from this resume of the relevant legislative provisions that the municipal authorities are entitled to enter upon and inspect places where articles of food are stored or prepared for sale.
If the municipal authorities find that any article of food stored or prepared for sale is unwholesome or unfit for human food, they may seize them and destroy the same with the written consent of the owner or person in possession, and if such consent is not forthcoming and the articles are perishable, destroy them under the orders of a Magistrate.
But section 428 is not the only procedure under the Act authorizing seizure of articles.
of food which are unwholesome or unfit for human food.
The municipal authorities may move a Magistrate for the issue of a warrant for seizure of articles of food which are unsound, unwholesome or unfit for human food, and under the authority of the warrant, such articles may be seized.
Articles of food seized under section 428(1) which are not disposed of under section 429 are required to be taken before a Magistrate as soon as may be after seizure and under sub section
2 of section 431, the Magistrate is authorized, if it appears to him that the articles of food are unsound or unwholesome or unfit for human food to order destruction or disposal thereof Evidently, the expression "such" used in sub s.2 of section 431 refers.
to the articles of food described in sub.s. 1 of 363 that section and section 431(1) only deals with articles seized under section 428.
There is no express provision made by the legislature either in section 431 or elsewhere in the Act authorizing destruction ' or disposal of articles of food which are seized under a warrant issued under section 430.
Counsel for the Municipality contends that the legislature intended that all articles seized, whether on inspection under section 428 or under a warrant issued under section 430 must be dealt with under section 431 and the High Court was in error in holding that the authority of the Magistrate to order destruction or disposal of articles of food could be exercised only in respect of articles seized under section 428.
But the words used in section 431(2) clearly authorize the Magistrate to order destruction or disposal of articles seized under section 428 and not dealt with under section 429, and it is difficult to uphold the plea that the legislature intended, even though it did not so expressly provide, that the articles seized under a warrant issued under section 430 may also be dealt with under sub section 2 of section 431.
Counsel for the Municipality submits that it could not even have been the intention of the legislature that the Magistrate can order seizure of unwholesome food but cannot order its destruction, though he may order destruction of unwholesome articles of food seized by the officers of the Municipality.
It appears, however, that a person storing unwholesome articles of food may be prosecuted for infraction of the provisions of section 421 and in the course of or on the conclusion of those proceedings, it would certainly be open to the Magistrate, having seizin of the complaint, to pass an appropriate order under the Code of Criminal Procedure for destruction of the articles seized.
In view of this, we are not prepared to say that the absence of an express provision relating to the disposal of articles seized under section 430 is not deliberate; but even if we are constrained to hold that there is a lacuna in section 431, we do not think that we would be justified contrary to the plain words used by the legislature, in attempting to remedy the same by holding that a Magistrate exercising power under sub section
2 of section 431 has authority to 364 order destruction of articles seized in pursuance of a warrant issued under section 430.
The argument advanced by counsel for the Municipality that the seizure was in exercise of the powers under section 428 and not under section 430 has, in our judgment, no force.
The report of the Chairman of the Municipality dated March 10, 1950, makes it abundantly clear that the search warrant was issued by the Sub Divisional Officer in exercise of his authority under section 430 of the Bengal Municipal Act. 'Any admission by the respondents that the seizure was under section 428 of the Act in proceedings for resisting the order which the Municipality claimed to obtain against them can have no value.
Section 428 does not contemplate a seizure of articles of food which are unwholesome, under the authority of a Magistrate, and section 430 is expressly the provision which authorises a Magistrate to issue a warrant, for such seizure.
The powers under section 431(2) are expressly directed to be exercised by the Magistrate in respect of articles seized under section 428, and there is nothing in the former provision which may justify the view that those powers can also be exercised in respect of articles seized under a warrant issued under section 430.
In our opinion, the High Court was right in its conclusion.
The appeal therefore fails and is dismissed.
Appeal dismissed.
[/INST]One S lodged a first information report against K.
When K found that no action was taken on the report for several months he filed a criminal complaint against S contending that the report lodged by S was false.
At the instance of S the magistrate ordered K 's complaint to stand adjourned till the police made its final report on the first information report.
Thereupon K moved the High Court under section 561 A of the Code of Criminal Procedure for quashing the proceedings initiated by the first information report.
Pending the hearing the police submitted its report under section 173 of the Code.
Subsequently the High Court dismissed the petition.
K obtained special leave and appealed: Held that no case for quashing the proceedings was made out.
The inherent 'Jurisdiction of the High Court could be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice.
The following are some categories of cases where the inherent jurisdiction could and should be exercised to quash proceedings: (i) where there was a legal bar against the institution or continuance of the proceedings; (ii) where the allegations in the first information report or complaint did not make out the offence alleged; and (iii)where either there was no legal evidence adduced in support of the charge or the evidence adduced clearly or manifestly failed to prove the charge.
In exercising its jurisdiction under section 561 A of the Code the High Court cannot embark upon an enquiry as to whether the evidence in the case is reliable or not .
In the present case there was no legal bar to the institution of the proceedings or to their continuance; the allegations made in the first information report did constitute the offences alleged and it could not be contended that on the face of the record the charge was unsustainable.
In re: Shripad G. Chandavarkar, A.I.R. 1928 Bom.
184, jagat Chandra Mozumdar vs Queen Empress, Cal.
786, Dr. Shankar Singh vs The State of Punjab, (1954) 56 Punj.
L.W. 54, Nripendra Bhusan Ray vs Govind Bhandhu Majumdar, A.I.R. 1924 Cal.
1018 and Ramanathan Chettiar vs K. Sivarama Subrahmanya Ayyar, Mad. 722, referred to.
S.P. Jaiswal vs The State, , distin guished, 389
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<s>[INST] Summarize the judgementNo. 119 of 1957.
Writ Petition, under Article 32 of the Constitution of India for the enforcement of Fundamental Rights.
Achhru Ram, J. P. Goyal and K. L. Mehta, for the petitioners.
H. N. Sanyal, Additional Solicitor General of India, K.L. Misra, Advocate General for the State of U. P. and Gopi Nath Dixit, for the respondent.
December 17.
The Judgment of the Court was delivered by WANCHOO, J.
This petition under article 32 of the Constitution challenges the constitutionality of the 117 930 U.P. Consolidation of Holdings Act, (U. P. V of 1954), as amended by U. P. Acts No. XXVI of 1954, No. XIII of 1955, No. XX of 1955, No. XXIV of 1956 and No. XVI of 1957, (hereinafter called the Act).
The applicants are four brothers holding land in village Banat, tahsil Kairana, District Muzaffarnagar.
A notification was issued under section 4 of the Act in respect of 223 villages in tahsil Kairana, declaring that the State Government had decided to make a scheme of consolidation in that area.
This was followed up by necessary action under the various provisions of the Act resulting in a statement of proposals under section 19.
Objections to these proposals were filed by the petitioners and others, which were decided in April 1956.
The petitioners went in appeal to the Settlement Officer (Consolidation), which was decided in August 1957.
It was thereafter that the present petition was filed in this Court.
The petitioners challenge the constitutionality of the Act on various grounds, of which the following five have been urged before us: (1)Section 6 read with section 4 of the Act gives arbitrary powers to the State Government to accord discriminatory treatment to tenure holders in different villages by placing some villages under consolidation while excluding others, thus offending article 14 of the Constitution.
(2)Sections 8, 9 and 10 read with section 49 of the Act provide a procedure for the correction and revision of revenue records for villages under consolidation, which is vitally different from that applicable to villages not under consolidation, and there is thus discrimination which offends article 14 of the Constitution ; (3)Sections 14 to 17 read with section 49, confer arbitrary powers on the consolidation authorities under which they can deprive a tenure holder of his land or rights therein and the tenure holder has been deprived of the protection of courts available to other tenure holders in villages not under consolidation, thus creating discrimination which offends article 14. 931 (4)Sections 19 to 22, read with section 49, again create discrimination on the same grounds as sections 14 to 17, and are, therefore, hit by article 14; and (5)Section 29 B, which provides for compensation gives inadequate compensation and is, therefore, hit by article 31(2) of the Constitution.
Before we take these points seriatim, it is useful to refer to the background of this legislation.
As far back as 1939, the U. P. Consolidation of Holdings Act No. VIII of 1939, was passed.
It was, however, of little effect, because it could only be applied when more than one third of the proprietors of the cultivated area of a village applied for an order of consolidation of the village.
It was, therefore, felt that some kind of compulsion would be necessary in order to achieve consolidation of holdings in villages.
That consolidation would result in improving agricultural production goes without saying and it was with the object of encouraging the development of agriculture that consolidation schemes with a compulsory character were taken up in various States, after the recommendation of The Famine Inquiry Commission, 1944, in its Final Report; (Seepage 263).
The State of Bombay.
was the first to pass an Act called the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, (Bom.
LXII of 1947).
This was followed by the impugned Act in Uttar Pradesh.
The object of the Act is to allot a compact area in lieu of scattered plots to tenure holders so that large scale cultivation may be possible with all its attendant advantages.
Thus ' by the reduction of boundary lines saving of land takes place and the number of boundary disputes is reduced.
There is saving of time in the management of fields inasmuch as the farmer is saved from travelling from field to field, which may be at considerable distances from each other. ' Proper barriers such as fences, hedges and ditches can be erected around a compact area to prevent trespassing and thieving.
It would further be easier to control irrigation and drainage and disputes over water would be reduced considerably where compact areas are allotted to tenure holders.
Lastly, the control of pests, insects 932 and plant disease is made easier where farmers have compact areas under cultivation.
These advantages resulting from consolidation of holdings are intended to encourage the development of agriculture and larger production of food grains, which is the necessity of the day.
With these objects in mind, the Act was passed by the U. P. Legislature in 1953 and received the assent of the President on March 4, 1954.
It was published in the gazette on March 8, 1954, and declarations under section 4 were made for the major part of the State of Uttar Pradesh, including the petitioners ' village, in July, 1954.
The scheme of the Act is as follows: When consolidation of a village is taken up, the first thing that is done is to correct the revenue records, and sections 7 to 12 deal with that.
Then comes the second stage of preparing what are called statements of principles ; (see sections 14 to 18).
Objections to these principles are entertained and decided and thereafter the principles are confirmed under section 18.
Then comes the third stage (vide sections 19 to 23), which deals with the preparation of the statement of proposals.
Objections to this are also invited and disposed of, and then proposals are confirmed under section 23.
After the proposals have been confirmed, we come to the last stage in which the confirmed proposals are enforced; (see sections 24 onwards).
It will be clear therefore from the objects of the Act and the advantages that accrue from its implementation that it is a piece of legislation, which should be a boon to the tenure holders in a village and should also lead to the development of agriculture and increase of food production.
It is in this setting that we have to examine the attack that has been made on the constitutionality of the Act.
Re. 1 : Section 6 of the Act gives power to the State Government at any time to cancel the declaration made under section 4 in respect of the whole or any part of the area specified therein.
When such declaration is made the area ceases to be under consolidation operations and section 5 which provides for the effect of a declaration ceases to operate.
It is urged that section 4 933 gives arbitrary power to the State Government to cancel the declaration, even with respect to a part of the area covered by it and thus discriminates between villages which are under consolidation and those which are not under consolidation.
The learned Additional Solicitor General counters this argument in two ways: (i) Section 6 is nothing more than a restatement of the power which the State Government otherwise possessed under the General Clauses Act; and (ii) the high status of the authority to whom the power is given, namely, the State Government, and the rules framed under the Act laying down a standard for the Government to follow, remove any flavour of arbitrariness which the terms of the section might import.
It is not necessary to express any opinion in this case on the said contention, for, even if it be accepted, the result would be only that section 6 would be struck down.
The petitioners would be in the same position with section 6 on the Statute or without it.
It may be that, if a citizen in whose favour an order of consolidation has been made but subsequently cancelled, comes to court with a grievance that the order of consolidation was for his benefit but was cancelled in exercise of a power under a void section, this question might arise for consideration.
It may also be that the petitioners ' right might be infringed if section 6 were not severable from the other provisions of the Act which enable the Government to direct consolidation of holdings.
The power of cancellation cannot be said to be so inextricably mixed up with the power to order consolidation as to prevent the operation of one section without the other.
Nor can it be said that the Legislature would not have conferred the power on the Government to consolidate holdings without at the same time conferring on them the power to cancel the said order of consolidation.
The said provisions are clearly severable.
In the circumstances, as the petitioners ' case is not affected by section 6 of the Act, we leave this open to be decided in an appropriate case.
Re. 2: This deals with the first stage of revision and correction of maps and records, which has to take place before the actual consolidation scheme is put 934 into force.
Section 7 provides for the examination of the revenue records by the Assistant Consolidation Officer and he is enjoined to test the accuracy of the village map, khasra and the current annual registers by making a partal in accordance with the procedure to be prescribed.
After he has done the partal, he is to prepare a statement showing the mistakes discovered in the map, khasra and khatauni, 'and the number and nature of disputes pertaining to land records under the U. P. Land Revenue Act, 1901.
Then under section 8 he submits a report to the Settlement Officer (Con solidation) in this connection with his opinion whether any revision of such maps and records is needed.
On receipt of this report, the Settlement Officer may either order the Assistant Consolidation Officer to proceed with the correction of maps and records, which we presume he will order when there are not too many mistakes, or recommend to the State Government for revision of maps or records in accordance with the provisions of Ch.
IV of the U. P. Land Revenue Act, 1901, which he will presumably do if there are too many mistakes found.
If the Assistant Consolidation Officer is ordered to make the corrections he will make a further partal, if necessary, and correct the map or the entries in annual register in accordance with the procedure to be prescribed.
The procedure is prescribed in r. 22 and among other things it lays down that the Assistant Consolidation Officer shall issue a notice to all persons affected by the provisional entries proposed by him; objections are invited and parties are examined and heard and their evidence taken and then the Assistant Consolidation Officer makes the corrections.
His order is open to appeal within twentyone days under section 8(4) to the Consolidation Officer, and the order of the latter is made final.
It is urged that this procedure is vitally different from the procedure prescribed under the U. P. Land Revenue Act and that under section 49 of the Act the jurisdiction of the civil and revenue courts with respect to any matters arising out of consolidation proceedings is barred, thus depriving those affected by the orders of the Consolidation Officer the right to file a suit as they 935 could have done under the provisions of the U. P. Land Revenue Act; (see sections 40, 41, 51 and 54).
There is no doubt that there is some difference between the procedure provided under the Act and that which the tenure holders 'Would have been entitled to if their village was not under consolidation.
But if consolidation is a boon to the tenure holders of a village, as we hold it is, and if it is to be put through within a reasonable period of time, it is necessary to have a procedure which would be shorter than the ordinary procedure under the U. P. Land Revenue Act or through a suit in a civil or revenue court.
The procedure that has been provided cannot by any means be said to be arbitrary or lacking in the essentials of principles of natural justice.
The Assistant Consolidation Officer gives notice to the persons affected, hears their objections and gives them an opportunity to produce evidence.
Thereafter he decides the objections and one appeal is provided against his order.
This should, in our opinion, be enough in the special circumstances arising under the Act to do justice to those who object to the correction of records.
All that has happened is that the number of appeals is out down to one and that in our opinion is not such a violent departure from the ordinary procedure as to make us strike down the provisions contained in Ch.
II of the Act as discriminatory, in the peculiar circumstances arising out of a scheme of consolidation which must, if it has to be of any value, be put through within a reasonable period of time.
Whatever difference there may be may well be supported as a permissible classification on an intelligible differentia having a reasonable relation to the object sought to be achieved by the Act.
Further section 12 provides that where there is dispute as to title and such question has not already been deter.
mined by any competent Court, the Consolidation Officer has to refer the question for determination to the Civil Judge who thereafter will refer it to the arbitrator.
The arbitrator then proceeds in the manner provided by r. 73 and gives a bearing to the parties and takes evidence both oral and documentary before making his award; and section 37 of the Act makes the 936 Arbitration Act applicable to the proceedings before the arbitrator in the matter of procedure.
Taking, therefore, the scheme of Ch.
11 and remembering that if consolidation is to be put through there must be a more expeditious procedure, there is in our opinion rational basis for classification which justifes the procedure under Ch.
11 of the Act read with the Rules in villages where consolidation scheme is to be effective.
The attack, therefore, under article 14 of the Constitution on the provisions of Ch.
II fails.
Re. 3 and 4: The contentions on these heads may be taken together.
They attack the provisions of Ch.
III dealing with the Statement of Principles and Statement of Proposals.
The statement of principles is first published and objections are invited.
Under section 17 the Assistant Consolidation Officer decides the objections after hearing the parties, if necessary, and taking into account the view of the Consolidation Committee.
He then submits a report to the Consolidation Officer who after hearing the objectors and taking such evidence as may be necessary passes final order and confirms the statement of principles; (see r. 43 B).
Similarly, when statements of proposals are published, objections are invited to them, and the same procedure is followed in the decision of these objections as in the case of the objections to the statement of principles.
In the case of the statement of proposals also, there is similar provision to refer disputed question of title to the Civil Judge, who, in his turn, refers it to the arbitrator.
Section 22 also provides that where such question has been referred to the arbitrator, all suits or proceedings in the court of first instance, appeal, reference or revision, in which the question of title to the same land has been raised, shall be stayed.
Section 22(3) makes the decision of the arbitrator final.
There is no provision for appeal in Ch.
III though in fact two persons hear the matter, namely, the Assistant Consolidation Officer and the Consolidation Officer.
But the main attack is on the provisions of section 22(2) on account of which it is said that even where a party has obtained a decree which might be under appeal, the jurisdiction of the ordinary 937 courts is taken away and the decision of the arbitrator is made final.
That is undoubtedly so.
But if the consolidation scheme has to be put through in a reasonable period of time such a provision is, in our opinion, necessary; but for it the consolidation schemes may never be really put through for there will be little purpose in making consolidation where a large number of disputes are pending in the courts.
Reasons which we have given in dealing with the second point apply with equal force to these two points also, and we are of opinion that there is a rational basis for a classification which has a nexus with the object of the Act, and therefore, the attack under article 14 on the provisons of Chapter III also must fail.
Re. 5.
Under this head,, the inadequacy of compensation provided under section 29 B of the Act is raised.
It may be mentioned that the Act, as originally passed, did not contain any provision for compensation.
There were a number of writ applications in the Allahabad High Court and that court held that inasmuch as some property was taken away under section 14(1) (ee) for public purposes and no compensation was provided, that provision was void under article 31 (2) as it stood before the Constitution (Fourth Amendment) Act, 1955 (hereinafter called the Fourth Amendment,).
Appeals by the State Government from that decision of the Allahabad High Court are pending before us and we shall deal with them separately.
The legislature then enacted section 29 B laying down the principles on which compensation would be paid for lands taken away under section 14 (1) (ee) after the decision of the Allahabad High Court.
This section was put by Act XVI of 1957 in the original Act with retrospective effect from the date from which the original Act was enforced.
It is urged that the compensation provided therein is inadequate, and, therefore, the provision should be struck down under article 31 (2), as it was before the Fourth Amendment.
Arguments were also addressed on the question whether section 29 B would be saved by the 118 938 Fourth Amendment.
We, however, think it unnecessary to go into these arguments for we have come to the conclusion that in the circumstances of this case the compensation provided under section 29 B is adequate.
Assuming that the case is governed by article 31 (2) as it was before the Fourth Amendment, section 29 B provides for payment of cash compensation equal to four times the value determined at hereditary rates to a bhumidar and two times the value to a sirdar.
The difference between the two rates has not been attacked for the rights of a bhumidar are much higher than the rights of a sirdar.
The bhumidar is the owner of the land while the sirdar is merely a tenant; but the argument is that the amount provided is inadequate, and that it is certainly not the fair market value of the land.
Let us see what section 14 (1) (ee) provides.
It lays down the basis on which the tenure holder will contribute towards the land required for public purposes and the extent to which vacant land may be utilised for the said purpose.
We are here concerned with the first part, namely, the contribution of tenure holders towards land required for public purposes.
In this case the petitioners had lands in one chak of the rental value of Rs. 20 6 0 and they have been allotted lands of the rental value of Rs. 20 5 0 instead.
In another chak, in place of land the rental value of which is Rs. 148 10 0 they have been allotted land of the rental value of Rs. 147 13 0.
Thus out of the land valued at Rs. 169 0 0, they have been allotted land of the value of Rs. 168 2 0, and land valued at Annas 0 14 0 has gone to the common pool.
The percentage is just over a half per cent.
it hardly ever exceeds one per cent.
Thus the land which is taken over is a small bit, which sold by itself would hardly fetch anything.
These small bits of lands are collected from various tenure holders and consolidated in one place and added to the land which might be lying vacant so that it may be used for the purposes of section 14 (1) (ee).
A compact area is thus created and it is used for the purposes of the tenure holders themselves and other villagers.
Form CH 21 framed under r. 41 (1) shows the purposes to which this land would be applied, 939 namely, (1) plantation of trees, (2) pasture land, (3) manure pits, (4) threshing floor, (5) cremation ground, (6) graveyards, (7) primary or other school, (8) playground, (9) panchayatghar, and (10) such other objects.
These small bits of land thus acquired from: tenure holders are consolidated and used for these purposes, which are directly for the benefit of the tenure holders.
They are deprived of a small bit and in place of it they are given advantages in a much larger area of land made up of these small bits and also of vacant land.
The question then is whether in these circumstances it can be said that the tenureholders have been given adequate compensation by.
section 29 B for the small bits of land acquired from them for public purposes.
This case must be distinguished from other cases where lands are acquired under the Land Acquisition Act, for here the benefit is direct to the tenure holders while in ordinary cases of land acquired for public purposes, if there is any benefit to the person from whom the land is acquired, it is indirect and remote.
It is contended on behalf of the State in the circumstances that the compensation which the tenure holders get is not merely the cash compensation which they receive under section 29 B but also the advantage which they receive by these small bits taken from them being consolidated into a larger area of land in which they will have benefits, the nature of which is indicated in form CH 21, over and above the advantage of having their scattered holdings consolidated into a compact block.
The question, therefore, is whether in these circumstances the provision of actual cash compensation under section 29 B can be said to be inadequate.
We are of opinion that taking into account the peculiar conditions in cases of this kind and remembering that the land taken from each individual tenure holder may be a small bit and it is then consolidated into a large area by adding some other lands taken from other tenure holders, and the whole is then used for the advantage of the whole body of tenure holders, it cannot be said that the cash compensation, added to the advantages which the tenure holders get in the 940 large area of land thus constituted and on account of getting a compact block for themselves, is inadequate.
Therefore, assuming that article 31 (2) applies as it was before the Fourth Amendment, it cannot be said that the compensation which the tenure holders will get under section 29 B is inadequate in the circumstances.
This ground of attack also therefore fails.
There is no force in this petition and it is hereby dismissed with costs.
Petition dismissed.
[/INST]The petitioners challenged the constitutional validity of the U.P. Consolidation of Holdings Act (U .
P. V of 954), as amended by the amending Acts, which was intended to encourage the development of agriculture by the allotment of compact areas to tenure holders in lieu of scattered plots so that large scale cultivation might be possible with all its attendant advantages.
A notification was issued under section 4 Of the impugned Act declaring the decision of the State Government to formulate a scheme of ' consolidation in respect of the area where the petitioners held their lands.
This was followed up by a statement of proposals under section 19.
The petitioners objected to these proposals and thereafter appealed to the Settlement Officer (Consolidation) but to no effect.
It was contended, inter alia, on their behalf that (1) the provisions of sections 8, 9 and 10 read with those Of s 49 Of the impugned Act were discriminatory in that they laid down a procedure for correction and revision of revenue records for 929 villages under consolidation that was vitally different from that applicable to other villages under the U.P. Land Revenue Act, 1901; (2) that sections 14 to 17 as also sections 19 to 22 read with section 49 conferred arbitrary powers on the consolidation authorities in respect of the lands of the tenure holder and his rights therein and deprived him of the protection of courts available to other tenure: holders and that (3) section 29B which provided for compensation, by giving inadequate compensation, offended article 31(2) Of the Con stitution.
Held, that the contentions must fail.
Although the procedure laid down by the impugned Act was to some extent different from that under the U.P. Revenue Act, 1901, it was by no means arbitrary or devoid of natural justice.
Regard being had to the advantages that consolidation conferred on the tenure holder such difference was supportable as a permissible classification on an intelligible differentia reasonably connected with the object of the Act.
The expeditious procedure for effectuating consolidation laid down by ch.
II of the Act read with the Rules, therefore, could not be said to violate article 14 Of the Constitution.
Nor could for similar reasons the provisions of ch.
III of the Act be said to violate article 14 Of the Constitution.
The provision Of section 22(2) Of the Act which made the decision of the arbitrator final by ousting the jurisdiction of ordinary courts even where a party had obtained a decree which might be under appeal, was necessary in the interest of expedition.
Having regard to the peculiar conditions in cases of this kind and the advantages a scheme of consolidation offered to the entire body of tenure holders, it could not be said that the cash compensation for tenure holders provided by section 29B of the impugned Act was inadequate, even assuming that article 31(2) applied to the case.
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<s>[INST] Summarize the judgementCivil Appeal No. 562 of 1985 From the Judgment and Order dated the 28th January, 1985 of the Calcutta High Court in F. M. A. T. No. 970 of 1984.
Somnath Chatterjee, H. K Puri for the Appellants.
section N. Kacker, ,4.
K Ganguli for the Respondents.
The West Bengal State Electricity Board is the principal appellant in this appeal by special leave which we have just now granted.
The first respondent, a permanent employee of the West Bengal State Electricity Board, filed the writ petition out of which the appeal arises in the Calcutta High Court to quash an order dated march 22, 1984 of the Secretary, West Bengal State Electricity 1016 Board terminating his services as Deputy Secretary with immediate effect on payment of three month 's salary in lieu of three month 's notice.
The order gave no reasons for terminating the services of the respondent and there was nothing in the order which could possibly be said to attach any stigma to the respondent.
Apparently the order was made under Regulation 34 of the Board 's regulations which enables the Board to terminate the services of any permanent employee 'by serving three months ' notice or on payment of salary for the corresponding period in lieu there of '.
The High Court contrasted Regulation 34 with Regulation 33 which provides for the termination of services of both permanent and temporary employees of the Board on attaining the age of superannuation, as a result of the disciplinary action etc.
For the sake of convenience we extract below Regulation 33 and the first paragraph (which alone is relevant) of Regulation 34: "33 (1) Unless otherwise specified in the appointment order in any particular case, the services of a permanent employee of the Board may be terminated without notice (i) On his attaining the age of retirement or by reason of a declaration by the competent medical authority that he is unfit for further service; or (ii) as a result of disciplinary action; (iii) if he remains absent from duty, on leave or other wise, for a continuous period exceeding 2 years.
(2) In the case of a temporary employee, his service may be terminated by serving of (a) one month 's notice on other side or on payment of` a month 's salary in lieu thereof; or (b) notice on either side for the period specified in the appointment order or contract or on payment of salary in lieu thereof, as the case may be.
(c) the service of a temporary employee shall also be deemed to have been terminated automatically if the period of extraordinary leave without pay and/or of unauthorized absence from duties exceeding(s) a maximum period of 90 days.
1017 "34.
in case of a permanent employees, his services A may be terminated by serving three months ' notice or on payment of salary for the corresponding period in lieu thereof.
" Contrasting Regulations 33 and 34 the High Court came to the conclusion that Regulation 34 was arbitrary in nature and suffered from the vice of enabling discrimination.
The High Court, therefore, struck down the first paragraph of Regulation 34 and as a consequence quashed the order terminating the services of the first respondent.
The learned counsel for the West Bengal State Electricity Board submitted that Regulation 34 did not offend article 14 of the Constitution, that sec.
18A and 19 of the Electricity Supply Act laid down sufficient guidelines for the exercise of the power under Regulation 34 and in any case the power to terminate the services of a permanent employee was vested in higher ranking officials and might be expected to be exercised in a reasonable way.
We are not impressed with the submission of the learned counsel for the Board On the face of it, the regulation is totally arbitrary and confers on the Board a power which is capable of vicious discrimination It is a naked 'hire and fire ' rule, the time for banishing which altogether from employer employee relationship is fast approaching.
Its only parallel is to be found in the Henry VIII class so familiar to administrative lawyers In Moti Ram Deka vs North East frontier Railway(l) Rules 148 (3) and 149 (3) of the Indian Railway Establishment Code were challenged on the ground that they were contrary to article 311 (2) of the Constitution.
The challenge was upheld though no opinion was expressed on the question whether the rule offended art 14 of the Constitution.
Since then article 14 has been interpreted in several decisions of this Court and conferment and exercise of arbitrary power on and by the State or its instrumentalities have been frowned upon and struck down (2) 1018 as Regulation 34 confers on the Board in the present case.
The learned judge struck down Regulation 48 (a) and we agree with his reasoning and conclusion.
In Workman, Hindustan Steel Ltd. vs Hindustan Steel Ltd.(l) this Court had occasioned to hold that a Standing Order which conferred such arbitrary, uncanalised and drastic power to enable the employer to dispense with an inquiry and to dismiss an employee, without assigning any reason, by merely stating that it was expedient and against the interest of the security to continue to employ the workman was violative of the basic requirement of natural justice.
The learned counsel for the appellant relied upon Manohar P. Kharkhar vs Raghuraj(2) to contend that Regulation 48 of the Air India Employee 's Service Regulations was valid.
It is difficult to agree with the reasoning of the Delhi High Court that because of the complexities of modern administration and the unpredictable exigencies arising in the course of such administration it is necessary for an employer to be vested with such powers as those under Regulation 48.
We prefer the reasoning of Sawant, J. Of the Bombay High Court and that of the Calcutta High Court in the judgment under appeal to the reasoning of the Delhi High Court.
In the result the appeal is dismissed with costs.
M. L. A. Appeal dismissed.
(1) ; (2) [1981] II L.L.J. 459.
[/INST]First Paragraph of Regulation 34 of West Bengal State Electricity Board Regulations provides that in case of a permanents employee his services may be terminated by serving 3 months notice or on payment of salary for the corresponding Period in lieu thereof.
The Secretary of the appellant Board terminated the services of first respondent, a permanent employee with immediate effect on payment of three months ' salary in lieu of three months notice without giving any reasons under Regulation 34 of the Board 's Regulations.
There was nothing in the order which could possibly be said to attach any stigma to the respondent The respondent filed a writ petition in the High Court for quashing the impugned order.
The High Court came to the conclusion that Regulation 34 was arbitrary in nature and suffered from the vice of enabling discrimination and therefore it struck down the first paragraph of Regulation 34 and as a consequence quashed the order terminating the services of the first respondent.
In an appeal to this Court, the appellant contended that section 18A and 19 of the Electricity Supply Act laid down sufficient guidelines for the exercise of the power under Regulation 34 and in any case the power to terminate the services of a permanent employee was vested in higher ranking officials and might be expected to be exercised in a reasonable way and therefore Regulation 34 did not offend Article 14 of the Constitution.
1015 Dismissing the appeal, ^ HELD: Article 14 has been interpreted in several decisions of the Court and conferment and exercise of arbitrary power on and by the State or its instrumentalities have been frowned upon and struck down by this Court as offending Article 14.
[1017G] In the instant case, on the face of it the Regulation is totally arbitrary and confers on the Board a power which is capable of vicious discrimination.
It is a naked 'hire and fire ' rule, the time for banishing which altogether from employer employee relationship is fast approaching Its only parallel is to be found in the Henry VIII class so familiar to administrative lawyers.
[10 1017E F] Workman, Hindustan Steel Ltd. vs Hindustan Steel Ltd., ; followed section section Muley vs J. R. D. Tata and Ors., [1979] 2 section L. R. 438, approved.
Moti Ram Deka vs North East frontier Railway; , , referred to.
Manohar p. Kharkhar vs Raghuraj, [1981] II L L J. 459, overruled.
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<s>[INST] Summarize the judgementAppeal No. 36 of 1968.
Appeal by special leave from the judgment and order dated November 19, 1963 of the Bombay High Court in Civil Revision Application No. 167 of 1959.
V. M. Tarkunde, P. C. Bhartari, O. C. Mathur and Ravinder Narain, for the appellant.
A. K. Sen, M. section Gupta and section L. Jain, for the respondent.
The Judgment of the Court was delivered by Ray, J.
This appeal is by special leave from the judgment dated 19 November, 1963 of the High Court of Bombay dismis sing the appellant defendant tenant 's application for revision in a decree for eviction of the defendant.
The appellant was tenant of the respondent.
On 28 April, 1954 the appellant filed an application under section II of the Bombay Rent Act for fixation of standard rent.
During the 627 pendency of the application the respondent landlady served a notice on the appellant in the month of March, 1955 terminating the tenancy on the ground that the appellant had failed to pay rent from I March, 1954.
On 25 April, 1955 a suit was filed for eviction of the appellant.
During the pendency of the suit on 29 June, 1956, the standard rent was fixed at Rs.55/7/ p.m.
The contractual rent was Rs. 85/ p.m.
When the suit came up for hearing on 5 October, 1956, it appeared that the appellant paid all the arrears of rent in accordance with the standard rent but did not pay the Costs of the suit.
The trial court passed an ejectment decree against the appellant.
The appellant preferred an appeal.
The appellate court took the view that the order of the trial court was justified under section 12(3)(b) of the Bombay Rent Act.
Section 12(3)(b) of the Bombay Rent Act provides that no decree in eviction shall be passed, if on the first day of the hearing of the suit or on or before such other date as the court may fix, the tenant pays or tenders.
in the court the standard rent and permitted increase in rent due, and thereafter continues to pay or tender in court regularly the said rent and permitted increase till the suit is finally decided and also pays costs of the suit as directed by the Court.
The appellant then filed an application for revision in the High Court.
The contention which was advanced in the High Court and repeated here was that the courts were in error in decreeing the suit for non payment of costs because the trial court had not passed any order fixing the amount of costs.
It was said that only when an order determining the amount of costs had been made by the court that the tenant could be said to be within the mischief of the provisions of the statute for non payment of costs so determined by the courts.
The High Court rightly rejected the contention for two reasons.
First, though a formal order as to costs was not made, yet the trial court had made an order directing the appellant to pay the amount of costs and the appellant did not pay the costs.
Secondly, the appellant stated before the trial court that the appellant was not in a position to tender what is described as "professional costs" and court costs of the suit.
It is indisputable that in the trial court the appellant not only admitted failure to pay costs but also inability to tender the costs.
The appellant could be entitled to protection against eviction only if the appellant complied with the provisions of the statute.
The appellant was required to tender not only the arrears of rent but .also the, costs of the suit.
In the trial court the appellant admitted non compliance with the provisions of the statute.
Therefore, the 628 trial court rightly held that the appellant was not entitled to any benefit or protection against eviction.
The appellate court held that because the appellant filed an application for fixation of standard rent and therefore there being a dispute between the parties regarding the standard rent no order in eviction could be passed under section 12(3) (a) of the Bombay Rent Act.
The appellate court, however, held that the case fell within the provisions of section 12(3) (b) of the Bombay Rent Act by reason of the failure of the appellant to pay costs of the suit.
Counsel for the appellant contended that the costs were deposited on 22 November, 1956 and therefore the High Court should have exercised discretion in favour of the appellant.
The High Court stated that the decree was passed on 5 October, 1956 and the appeal was filed on 18 October, 1956 and the amount of costs was not deposited with the filing of the memorandum of appeal.
The High Court concluded by stating that "the decree of the trial court was made on 5 October, 1956.
We are in the year 1963.
The attitude adopted by the petitioner is not such in which a discretion can be exercised in favour of the petitioner".
The High Court heard the application on 19 November, 1963.
Counsel for the appellant invited our attention to paragraph 13 of the application for review made in the High Court where the appellant alleged that on 7 December, 1956 the costs were paid.
No portion of the judgment of the High Court is open to any criticism for the obvious reason that when the memorandum of appeal was filed in the High Court on 18 October, 1956 the costs were not paid.
The application for review also indicates that when the matter was heard before the High Court it was not brought to the notice of the High Court that the costs were paid on 7 December, 1956 as alleged.
The appeal is from the judgment of the High Court.
It would be improper to interfere with exercise of discretion passed by the High Court when the matter was not brought to the notice of the High Court.
Discretion is exercised by the court in the facts and circumstances of the case.
Any interference with the exercise of discretion in the present case would be substituting the discretion 'of this Court on a set of facts which were never presented to the High Court.
The appellant was not entitled to any relief under the provisions of the Bombay Rent Act.
The High Court rightly rejected the application for revision.
The appeal fails and is dismissed with costs.
V.P.S. Appeal dismissed.
[/INST]In a suit for evicition on the ground of non payment of rent a decree was passed directing the tenant to pay the landlady 's costs, as, by that time, the tenant had paid all the arrears of rent as fixed; but the tenant did not pay or tender the costs.
Therefore, the court passed an order of eviction.
His appeal, a revision to the High Court, and a review petition to the High Court were all dismissed.
In appeal to this Court, HELD : (1) The tenant would be entitled to the protection under section 12(3) (b) of the, Bombay Rent Act, only if he complied with its provisions by paying or tendering not only the arrears of rent but also the costs of the suit.
Since the appellant admitted his inability to, comply with the provision, he could not claim protection against eviction.
[627 D, G] (2) Assuming that the costs were paid at a later date as alleged by the appellant, that fact was not brought to the notice of the High Court, and therefore this Court will not interfere with the exercise of discretion by the High Court in the set of facts and circumstances presented to the High Court. [628 F G]
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<s>[INST] Summarize the judgementivil Appeal No. 2991 of 1986.
From the Judgment and Order dated 13.1.
1986 of the Madras High Court in Civil Revision Petition No. 3599 of 1983.
Ms. Shyamala Pappu, Ms. Dhaneshwari and R. Vasudevan for the Appellant.
section Srinivasan for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an appeal by special leave from the judgment and order of the High Court on 13th January, 1986 ordering eviction under Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, hereinafter called the Act.
This is an appeal by the tenant.
A room in the front portion of the building had been leased out to the tenant for non residential purposes.
The landlord resides in the other portion.
The landlord needed additional accommodation for residential purposes due to marriages in the family.
Was the portion let out as such separate and distinct unit for the purpose of Section 10(3)(c) of the Act? It was not and as such the landlord was entitled to seek eviction of the tenant under section 10(3)(c) of the Act.
It has been so held clearly by this Court in Shri Balaganesan Metals vs
M.N. Shanmugham Chetty and Ors., [1987] 2 1148 SCC 707 wherein the section has been analysed and explained.
Ms. Shyamala Pappu, learned counsel for the appellant sub mits that the decision needs reconsideration as the residen tial and the nonresidential part of the building covered as separate units and the requirements of the two separate parts have not been properly assessed therein.
We are unable to accept this criticism.
A building may consist of separate parts if the context so warrants.
In the instant case as in Shri Balaganesan Metal 's case the context and the user did not warrant treatment of the portion let out for non resi dential user either as a separate or distinct unit.
It was only a small part of the residential building and not a separate part.
It was secondly submitted that the expression "as the case may be", in the section has not been properly appreci ated.
We are unable to agree.
The difference between resi dential part and the nonresidential has been borne in mind by my learned brother in the judgment aforesaid.
Justice Morris in Bluston & Bramley Ltd. vs Leigh (Euler and Another, Third Parties), [1950] 2 A.E.R. page 29 at page 35 explained that the phrase "as the case may be" meant in the events that have happened.
Our attention was also drawn to the expression "as the case may be" as appearing in the Words and Phrases Permanent Edition 4 Page No. 596.
The meaning of the expression "as the case may be" is what the expression says, i.e., as the situation may be, in other words in case there are separate and distinct units then concept of need will apply accordingly.
Where, however, there is no such separate and distinct unit, it has no significance.
There is no magic in that expression.
The expression "as the case may be" has been properly construed in the judgment mentioned hereinbefore.
It was lastly contended that comparative hardship in the instant appeal has not been properly considered.
It appears that there is nothing in this point.
The appellant is an affluent businessman and it is not difficult for him to get alternative accommodation.
On the other hand, the respond ents have no other residential house than the one in ques tion will find it extremely difficult to get residential accommodation in the same locality and as such they will be put to immense hardship if they are not allowed to occupy the additional portion in their house which has been leased out to the tenant.
The Court has observed that there is no question of balance of convenience.
In that view of the matter this appeal must fail and is, therefore, dismissed.
There will, however, be no order as to costs.
P.S.S. Appeal dismissed.
[/INST]The appellant/plaintiffs filed a suit for a declaration that the eight agreements/contracts executed between the appellants and the defendant/respondent No. 1, were not 'hire purchase agreements ' but were agreements relating to the transaction of loan.
The suit was dismissed.
The appellate Court confirmed the decision of the Trial Court.
There was a second appeal to the High Court, whereafter the appellants moved this Court by special leave against the judgment and order of the High Court.
Allowing the Appeal, the Court, HELD: The suit had been dismissed on the ground that it was not maintainable in view of the provisions of section 32 of the .
Section 32 of the Act stipulates that notwithstanding any law for the time being in force, no suit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award, nor shall any arbitration agreement or award be enforced, set aside, amended, modified or in any way affected otherwise than as provided in the Act.
[49B C] Specific case of the appellants was that it was a transaction of loan and there was in fact no agreement of arbitration.
It appeared from the plaint as well as the issues framed that the very existence of the agreement described as hire purchase agreement was put in issue.
The execution of the documents was not denied but it was alleged that these were manipulated documents and that there were in fact no agreements which contained the arbitration agreement.
[50A C] Section 32 of the Act does not contemplate the case of suits challenging the validity of a contract because it contains an arbitration 48 clause.
The section has a very limited application, namely, where the existence of the validity of an arbitration agreement and not the contract containing the arbitration agreement is challenged.
[50D E] Every person has a right to bring a suit which is of a Civil nature and the Court has jurisdiction to try all suits of Civil nature under section 9 of the Code of Civil Procedure.
That right has not been taken away by section 32 of the Act.
One of the issues, framed namely.
issue No. 4 was "whether the defendant No. 1 obtained disputed hire purchase agreements from the plaintiffs in pursuance of its money lending business?" The existence of the disputed hire purchase agreements was put in issue.
It is true that the execution of an alleged document was not in issue, but the existence of that document as an arbitration agreement was in issue.
Section 32 of the Act does not purport to deal with suits for declaration that there was never any contract or that the contract is void.
This principle is well settled.
In State of Bombay vs Adamjee Hajee Dawood and Co., A.I.R. 1951 Calcutta 147, the Calcutta High Court held that section 32 of the Act does not contemplate the case of a suit challenging the validity of a contract merely because it contains an arbitration clause.
This is the correct position in law, and in the facts and circumstances of the case, the trial Court, the appellate Court and the High Court in this case were in error.
Their judgments and orders were set aside.
[50E H; 51A C] State of Bombay vs Adamjee Hajee Dawood & Co., A.I.R , referred to.
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<s>[INST] Summarize the judgementCivil Appeal No. 2526 of 1972.
Appeal from the Judgment and Order dated the 13th January, 1972 of the Calcutta High Court in Matter No. 326 of 1967.
G. C. Sharma and section P. Nayar, for the Appellant.
D. Pal, B. Sen, (Mrs.) Leila Seth, P. K. Pal, section R. Agarwala and Parveen Kumar for the Respondent.
The Judgment of the Court was delivered by KHANNA, J.
This appeal on certificate is against the Full Bench judgment of the Calcutta High Court whereby on petition under article 226 of the Constitution of India filed by the respondent that court by majority quashed notice under section 148 of the Income tax Act, 1961 (hereinafter referred to as the Act) issued by appeallant No. 2 (Income tax Officer E Ward, Hundi Circle, Calcutta) (hereinafter referred to 958 as the appellant) for the purpose of reopening assessment of the income of the respondent for the assessment year 1958 59.
The respondent was assessed for the assessment year 1958 59 under section 23(3) of the Indian Income tax Act, 1922 on June 14, 1960.
His total income was assessed to be Rs. 37,872.
While making the assessment the Income tax Officer allowed deduction of a sum of Rs. 15,991 by way of expenses claimed by the respondent.
The expenses included Rs. 10,494/4 As/3 Pies by way of interest.
According to the respondent, he produced through his authorised representative all books of accounts, bank statements and other necessary documents in connection with the return.
On March 14, 1967 the respondent received notice dated March 8, 1967 issued by the appellant under section 148 of the Act stating that the appellant had reason to believe that the respondent 's income which was chargeable to tax for the assessment year 1958 59 had escaped assessment within the meaning of section 147 of the Act and that the notice was being issued after obtaining the necessary satisfaction of the Commissioner of Income tax.
The respondent was called upon to submit within 30 days from the date of the service of the notice a return in the prescribed form of his income for the assessment year 1958 59.
On May 2, 1967 the respondent through his lawyer stated that there was no material on which the appellant had reason to believe that the respondent 's income had escaped assessment and, therefore, the condition precedent for the assumption of jurisdiction by the appellant had not been satisfied.
The appellant was said to have no competence or jurisdiction to re open the assessment under section 147 of the Act on a mere change of opinion.
The appellant was also called upon to furnish all the materials on which he had reason to believe that income had escaped assessment.
As, according to the respondent, there was no satisfactory response from the appellant, he filed petition under article 226 of the Constitution for quashing the impugned notice.
It was denied in the affidavit on behalf of the appellant that all materials relevant and necessary for the assessment of the respondent 's income for the assessment year 1958 59 had been produced before the Income tax Officer at the time of the original assessment.
It was further stated: "Subsequent to the assessment for the assessment year 1958 59, it was discovered, inter alia, that some of the loans shown to have been taken and interests alleged to have been paid thereon by the petitioner during the relevant assessment year were not genuine.
The Income tax Officer had reason to believe and bona fide believed that the said alleged loans and the interest alleged to have been paid thereon are not genuine.
If necessary, I crave leave to produce before the hon 'ble Judge hearing the application, the relevant records on the basis of which the said Income tax Officer had reason to believe that the income of the petitioner escaped assessment as aforesaid at the hearing of the application.
" During the pendency of the proceedings the High Court directed that a copy of the report made by the appellant to the Commissioner of 959 Income tax for obtaining latter 's sanction under section 147 be produced.
The report was accordingly produced, and the same reads as under: "There are hundi loan credits in the name of Narayan singh Nandalal, D. K. Naraindas, Bhagwandas Srichand, etc., who are known name lenders, and also hundi loan credit in the name, Mohansingh Kanayalal, who has since confessed he was doing only name lending.
In the original assessment these credits were not investigated in detail.
As the information regarding the bogus nature of these credits is since known, action under section 147 (a) is called for to reopen the assessment and assess these credits as the undisclosed income of the assessee.
The assessee is still claiming that the credits are genuine in the assessment proceedings for 1962 63.
Commissioner 's sanction is solicited to reopen the assessment for 1958 59, under section 147(a).
" All the three Judges who constituted the Full Bench found that the assessee was not being charged with omission to disclose all facts: he was charged for having made an untrue disclosure because the assessee had stated that he had received certain sums of money from certain persons as loans when, in fact, he had not received any sum at all from these persons.
It was also stated by the assessee at the time of the original assessment that he had paid interest to certain persons when, in fact, he had not, if the information received later was true.
The duty of the assessee, it was held, was not only to make a full disclosure of all material facts, his duty was also to make a true disclosure of facts and not to mislead the assessing officer by disclosing certain things which did not represent facts.
The High Court accordingly held that once an assessee infringes this rule, any subsequent discovery of fact by the assessing officer which would raise a resonable belief in his mind that the assessee had not made a true and correct disclosure of the facts and had thereby been responsible for escapement of his income from assessment would attract section 147 of the Act.
Two of the learned Judges, A. K. Mukherjea and section K. Mukherjea JJ., however, took the view that the conditions precedent for the exercise of jurisdiction by the Income tax Officer under section 147 of the Income tax Act were not fulfilled in the case as the report submitted by the Income tax Officer to the Commissioner for sanction under section 147(a) was defective.
The defects in the report, in the opinion of the High Court, were the same as had been pointed out by this Court in the case of Chhugamal Rajpal vs section P. Chaliha.(1) The Commissioner, while according permission for taking action under section 147, it was observed, acted mechanically because the Commissioner had not expressly stated that he was satisfied that this was a fit case for the issue of notice under section 148.
As against the majority, Sabyasachi Mukherji J. held that notice under section 148 of the Act was valid and did not suffer from any infirmity.
It was 960 also observed that the Commissioner of Income tax had not acted improperly in giving sanction.
In the result, by majority the High Court quashed the notice issued by the appellant to the respondent.
In appeal before us Mr. Sharma on behalf of the appellants has assailed the judgment of the majority of the learned Judges in so far as they have held that the report submitted by the Income tax Officer to the Commissioner of Income tax for sanction was defective.
As against that, Dr. Pal on behalf of the assessee respondent has canvassed for the correctness of the view taken by the majority regarding the defective nature of the report.
Dr. Pal has in his own turn assailed the finding of all the three learned Judges of the High Court in so far as they have held that the assessee was being charged with omission to disclose true facts.
Contention has also been advanced by Dr. Pal that the material on the basis of which the Income tax Officer initiated these proceedings for reopening the assessment did not have a rational connection with the formation of the belief that the assessee had not made a true disclosure of the facts at the time of the original assessment.
Before dealing with the points of controversy, it would be useful to reproduce the relevant provisions of the Act.
Sections 147 and 148 which deal with income escaping assessment and issue of notice where income has escaped assessment read as under: "147.
Income escaping assessment.
If (a) the Income tax Officer has reason to believe that, by reason of the omission or failure on the part of an assessee to make a return under section 139 for any assessment year to the Income tax Officer or to disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax has escaped assessment for that year, or (b) notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the Income tax officer has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of section 148 to 153, assess or ressess such income or recompute the loss or the depreciation allowance, as the case may be, for the assessment year concerned (hereinafter in sections 148 to 153 referred to as the relevant assessment year).
Explanation 1.
For the purposes of this section, the following shall also be deemed to be cases where income chargeable to tax has escaped assessment, namely: (a) where income chargeable to tax has been under assessed; or 961 (b) where such income has been assessed at too low a rate; or (c) where such income has been made the subject of excessive relief under this Act or under the Indian Income tax Act, 1922 (XI of 1922); or (d) where excessive loss or depreciation allowance has been computed.
Explanation 2.
Production before the Income tax Officer of account books or other evidence from which material evidence could with due diligence have been discovered by the Income tax Officer will not necessarily amount to disclosure within the meaning of this section.
Issue of notice where income has escaped assessment. (1) Before making the assessment, reassessment or recomputation under section 147, the Income tax Officer shall serve on the assessee a notice containing all or any of the requirements which may be included in a notice under sub section (2) of section 139; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub section.
(2) The Income tax Officer shall, before issuing any notice under this section, record his reason for doing so.
" Sub section (1) of section 149 prescribes the time limit for notice and reads as under: "(1) No notice under section 148 shall be issued" (a) in cases falling under clause (a) of section 147 (i) for the relevant assessment year, if eight years have elapsed from the end of that year, unless the case falls under sub clause (ii); (ii) for the relevant assessment year, where eight years, but not more than sixteen years, have elapsed from the end of that year, unless the income chargeable to tax which has escaped assessment amounts to or is likely to amount to rupees fifty thousand or more for that year; (b) in cases falling under clause (b) of section 147, at any time after the expiry of four years from the end of the relevant assessment year.
" Section 151 pertains to the sanction for issue of notice and reads as under: "151.
Sanction for issue of notice. (1) No notice shall be issued under section 148 after the expiry of eight years from the end of the relevant assessment year, unless the Board is satisfied on the reasons recorded by the Income tax Officer that it is a fit case for the issue of such notice.
962 (2) No notice shall be issued under section 148 after the expiry of four years from the end of the relevant assessment year, unless the Commissioner is satisfied on the reasons recorded by the Income tax Officer that it is a fit case for the issue of such notice.
" The provisions of sections 147 to 153 of the Act correspond to those of section 34 of the Indian Income tax Act, 1922.
There have been some points of departure from the old law, but it is not necessary for the purpose of the present case to refer to them.
It would appear from the perusal of the provisions reproduced above that two conditions have to be satisfied before an Income tax Officer acquires jurisdiction to issue notice under section 148 in respect of an assessment beyond the period of four years but within a period of eight years from the end of the relevant year, viz., (1) the Income tax Officer must have reason to believe that income chargeable to tax has escaped assessment, and (2) he must have reason to believe that such income has escaped assessment by reason of the omission or failure on the part of the assessee (a) to make a return under section 139 for the assessment year to the Income tax Officer, or (b) to disclose fully and truly material facts necessary for his assessment for that year.
Both these conditions must co exist in order to confer jurisdiction on the Income tax Officer.
It is also imperative for the Income tax Officer to record his reasons before initiating proceedings as required by section 148(2).
Another requirement is that before notice is issued after the expiry of four years from the end of the relevant assessment years, the Commissioner should be satisfied on the reasons recorded by the Income tax Officer that it is a fit case for the issue of such notice.
We may add that the duty which is cast upon the assessee is to make a true and full disclosure of the primary facts at the time of the original assessment.
Production before the Income tax Officer of the account books or other evidence from which material evidence could with due diligence have been discovered by the Income tax Officer will not necessarily amount to disclosure contemplated by law.
The duty of the assessee in any case does not extend beyond making a true and full disclosure of primary facts.
Once he has done that his duty ends.
It is for the Income tax Officer to draw the correct inference from the primary facts.
It is no responsibility of the assessee to advise the Income tax Officer with regard to the inference which he should draw from the primary facts.
If an Income tax Officer draws an inference which appears subsequently to be erroneous, mere change of opinion with regard to that inference would not justify initiation of action for reopening assessment.
The grounds or reasons which lead to the formation of the belief contemplated by section 147(a) of the Act must have a material bearing on the question of escapement of income of the assessee from assessment because of his failure or omission to disclose fully and truly all material facts.
Once there exist reasonable grounds for the Income tax Officer to form the above belief, that would be sufficient to clothe him with jurisdiction to issue notice.
Whether the grounds are adequate or not is not a matter for the court to investigate.
The 963 sufficiency of grounds which induce the Income tax Officer to act is, therefore, not a justiciable issue.
It is, of course, open to the assessee to contend that the Income tax Officer did not hold the belief that there had been such non disclosure.
The existence of the belief can be challenged by the assessee but not the sufficiency of reasons for the belief.
The expression "reason to believe" does not mean a purely subjective satisfaction on the part of the Income tax Officer.
The reason must be held in good faith.
It cannot be merely a pretence.
It is open to the court to examine whether the reasons for the formation of the belief have a rational connection with or a relevant bearing on the formation of the belief and are not extraneous or irrelevant for the purpose of the section.
To this limited extent, the action of the Income tax Officer in starting proceedings in respect of income escaping assessment is open to challenge in a court of law [see observations of this Court in the cases of Calcutta Discount Co. Ltd. vs Income tax Officer and section Narayanappa & Ors.
vs Commissioner of Income tax while dealing with corresponding provisions of the Indian Income tax Act, 1922].
Keeping the above principles in view, we may now turn our attention to the facts of the present case.
Two grounds were mentioned in the report made by the Income tax Officer for reopening the assessment of the assessee respondent with a view to show that his income had been under assessed because of his failure to disclose fully and truly material facts necessary for the assessment.
One was that Mohansingh Kanayalal, who was shown to be one of the creditors of the assessee, had since confessed that he was doing only name lending.
The other ground was that Narayansingh Nandalal, D. K. Naraindas, Bhagwandas Srichand, etc., whose names too were mentioned in the list of the creditors of the assessee, were known name lenders.
So far as the second ground is concerned, neither the majority of the Judges of the High Court nor the learned Judge who was in the minority relied upon that ground.
Regarding that ground, the learned Judge who was in the minority observed that no basis had been indicated as to how it became known that those creditors were known namelenders and when it was known.
The majority while not relying upon that ground placed reliance upon the case of Chhugamal Rajpal (supra).
In that case the Income tax Officer while submitting a report to the Commissioner of Income tax for obtaining his sanction with a view to issue notice under section 148 of the Act stated: "During the year the assessee has shown to have taken loans from various parties of Calcutta.
From D.I. 's Inv.
No. A/P/Misc.
(5) D.I./63 64/5623 dated August 13, 1965, forwarded to this office under C.I.T., Bihar and Orissa, Patna 's letter No. Inv.
(Inv.) 15/65 66/1953 2017 dated Patna September 24, 1965 it appears that these persons are name lenders and the transactions are bogus.
Hence, proper investigation regarding these loans is necessary.
The names of some of the persons from whom money is alleged to have been taken on loan on hundis are: 1.
Seth Bhagwan Singh Sricharan 964 2.
Lakha Singh Lal Singh 3.
Radhakissen Shyam Sunder The amount of escapement involved amounts to Rs. 1,00,000.
" In dealing with that report this Court observed: "From the report submitted by the Income tax Officer to the Commissioner, it is clear that he could not have had reasons to believe that by reason of the assessee 's omission to disclose fully and truly all material facts necessary for his assessment for the accounting year in question, income chargeable to tax has escaped assessment for that year, nor could it be said that he, as a consequence of information in his possession, had reasons to believe that the income chargeable to tax has escaped assessment for that year.
We are not satisfied that the Income tax Officer had any material before him which could satisfy the requirements of either clause (a) or clause (b) of section 147.
Therefore he could not have issued a notice under section 148".
Reference to the names of Narayansingh Nandalal, D. K. Naraindas, Bhagwandas Srichand, etc., in the report of the Income tax Officer to the Commissioner of Income tax in the instant case does not stand on a better footing than the reference to the three names in the report made by the Income tax Officer in the case of Chuugamal Rajpal.
We would, therefore, hold that the second ground mentioned by the Income tax Officer, i.e., reference to the names of Narayansingh Nandalal, D. K. Naraindas, Bhagwandas Srichand, etc., could not have led to the formation of the belief that the income of the respondent assessee chargeable to tax had escaped assessment for that year because of the failure or omission of the assessee to disclose fully and truly all material facts.
All the three learned Judges of the High Court, in our opinion, were justified in excluding the second ground from consideration.
We may now deal with the first ground mentioned in the report of the Income tax Officer to the Commissioner of Income tax.
This ground relates to Mohansingh Kanayalal, against whose name there was an entry about the payment of Rs. 74 Annas 3 as interest in the books of the assessee, having made a confession that he was doing only name lending.
There is nothing to show that the above confession related to a loan to the assessee and not to someone else, much less to the loan of Rs. 2,500 which was shown to have been advanced by that person to the assessee respondent.
There is also no indication as to when that confession was made and whether it relates to the period from April 1, 1957 to March 31, 1958 which is the subject matter of the assessment sought to be reopened.
The report was made on February 13, 1967.
In the absence of the date of the alleged confession, it would not be unreasonable to assume that the confession was made a few weeks or months before the report.
To infer from that confession that it relates to the period from April 1, 1957 to March 965 31, 1958 and that it pertains to the loan shown to have been advanced to the assessee, in our opinion, would be rather far fetched.
As stated earlier, the reasons for the formation of the belief must have a rational connection with or relevant bearing on the formation of the belief.
Rational connection postulates that there must be a direct nexus or live link between the material coming to the notice of the Income tax Officer and the formation of his belief that there has been escapement of the income of the assessee from assessment in the particular year because of his failure to disclose fully and truly all material facts.
It is no doubt true that the court cannot go into the sufficiency or adequacy of the material and substitute its own opinion for that of the Income tax Officer on the point as to whether action should be initiated for reopening assessment.
At the same time we have to bear in mind that it is not any and every material, howsoever vague and indefinite or distant, remote and far fetched, which would warrant the formation of the belief relating to escapement of the income of the assessee from assessment.
The fact that the words "definite information" which were there in section 34 of the Act of 1922 at one time before its amendment in 1948 are not there in section 147 of the Act of 1961 would not lead to the conclusion that action cannot be taken for reopening assessment even if the information is wholly vague, indefinite, far fetched and remote.
The reason for the formation of the belief must be held in good faith and should not be a mere pretence.
The powers of the Income tax Officer to reopen assessment though wide are not plenary.
The words of the statute are "reason to believe" and not "reason to suspect".
The reopening of the assessment after the lapse of many years is a serious matter.
The Act, no doubt, contemplates the reopening of the assessment if grounds exist for believing that income of the assessee has escaped assessment.
The underlying reason for that is that instances of concealed income or other income escaping assessment in a large number of cases come to the notice of the income tax authorities after the assessment has been completed.
The provisions of the Act in this respect depart from the normal rule that there should be, subject to right of appeal and revision, finality about orders made in judicial and quasi judicial proceedings.
It is, therefore, essential that before such action is taken the requirements of the law should be satisfied.
The live link or close nexus which should be there between the material before the Income tax Officer in the present case and the belief which he was to form regarding the escapement of the income of the assessee from assessment because of the latter 's failure or omission to disclose fully and truly all material facts was missing in the case.
In any event, the link was too tenuous to provide a legally sound basis for reopening the assessment.
The majority of the learned Judges in the High Court, in our opinion, were not in error in holding that the said material could not have led to the formation of the belief that the income of the assessee respondent had escaped assessment because of his failure or omission to disclose fully and truly all material facts.
We would, therefore, uphold the view of the majority and dismiss the appeal with costs.
P.B.R. Appeal dismissed.
[/INST]In March 1967, after obtaining the satisfaction of the Commissioner the appellant issued a notice under section 148 of the Income Tax Act, 1961 stating that he had reason to believe that the respondent 's income chargeable to tax for the assessment year 1958 59 had escaped assessment.
The respondent replied that the I.T.O. had no competence or jurisdiction to reopen the assessment under section 147 of the Act on a mere change of opinion.
Since there was no reply from the appellant, the respondent moved the High Court for a writ.
The High Court held that the conditions precedent for the exercise of jurisdiction by the Income Tax Officer were not fulfilled because the report submitted by the Income Tax Officer to the Commissioner under section 147(a) was defective.
On appeal to this Court it was contended that the High Court was not right in holding that the Income Tax Officer 's report was defective.
Dismissing the appeal, ^ HELD: The High Court was right in holding that the material before the Income Tax Officer could not have led to the formation of the belief that the income of the assessee had escaped assessment because of his failure or omission to disclose fully and truly all material facts.
[965H] 1.
(a) The two conditions required to be satisfied before the Income Tax Officer issued a notice under section 148 of the Income Tax Act are that he must have reason to believe (i) that the income chargeable to tax had escaped assessment and (ii) that such income had escaped assessment by reason of the omission or failure on the part of assessee, to disclose fully and truly material facts necessary for assessment for that year.
Both these conditions must co exist in order to confer jurisdiction on the Income Tax Officer.
Further the Income Tax Officer should record his reasons before initiating proceedings under section 148(2); before issuing the notice after the expiry of four years from the end of the relevant assessment year, the Commissioner should be satisfied on the reasons recorded by the Income Tax Officer that it was a fit case for the issue of such notice.
[962C D] (b) The duty cast upon the assessee does not extend beyond making a true and full disclosure of the primary facts.
It is then for the Income Tax Officer to draw the correct inference from the primary facts.
Where his inference subsequently appears to be erroneous, mere change of opinion with regard to that inference would not justify initiation of action for reopening the assessment.
[962F G] (c) The grounds or reasons leading to the formation of the belief under section 147(a) must have a material bearing on the question of escapement of income.
Once there exist reasonable grounds for the Income Tax Officer to form the above belief, that would be sufficient to clothe him with jurisdiction to issue notice.
While the sufficiency of grounds which induce the Income Tax Officer to act is not justiciable, it is open to the assessee to contend that the Income Tax Officer did not hold the belief that there was such non disclosure.
The expression "reason to believe" does not mean a purely subjective satisfaction on the part of the Income Tax Officer.
It is open to the Court to examine whether the reasons for the formation of the belief have a rational connection with or relevant bearing on the formation of the belief and are not extraneous or irrelevant for the purpose of the section.
[962H] 957 Chhugamal Rajpal vs section P. Chaliha , Calcutta Discount Co. Ltd. vs Income Tax Officer, 41 I.T.R. 191 and section Narayanappa & Ors.
vs Commissioner of Income Tax followed.
In the instant case the grounds given by the Income Tax Officer for reopening the assessment were (i) that the three persons whose names were mentioned in the list of creditors, were known name lenders and (ii) that another person shown as a creditor of the assessee had since confessed that he was doing only name lending.
The first ground mentioned by the Income Tax Officer could not have led to the formation of the belief that the income of the respondent had escaped assessment for that year because of his failure or omission to disclose fully and truly all material facts.
The High Court was justified in excluding that ground from consideration.
[963D E] As regards the second ground there is nothing to show that the confession of another person related to a loan to the assessee and not to someone else.
There is no indication as to when the confession was made and whether it related to the assessment year sought to be re opened.
To infer from that confession that it related to the period of assessment and that it pertained to the loan shown to have been advanced to the assessee would be far fetched.
[964G] 2(a).
Rational connection postulates that there must be a direct nexus or live link between the material coming to the notice of the Income Tax Officer and the formation of his belief that there had been escapement of income of the assessee from assessment in the particular year.
It is not any and every material, howsoever vague and indefinite or distant, remote and far fetched which would warrant the formation of the belief relating to escapement of the income of the assessee from assessment.
The fact that the words "definite information" in section 34 of 1922 Act before its amendment in 1948 do not find a place in section 147 would not lead to the conclusion that action could now be taken for reopening assessment even if the information was wholly vague, indefinite, far fetched and remote.
[965B D] (b) The powers of the Income Tax Officer to reopen assessment, though wide, are not plenary.
The words are "reason to believe" and not "reason to suspect".
The provisions of the Act depart from the normal rule that there should be finality about orders made in judicial and quasi judicial proceedings.
It is, therefore, essential that before such action is taken the requirement of the law should be satisfied.
[965E F] In the instant case the live link or close nexus between the material before the Income Tax Officer and the belief which he was to form regarding the escapement of the income was missing or at any rate the link was too tenuous to provide a legally sound basis for reopening the assessment.
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<s>[INST] Summarize the judgement: Criminal Appeal No. 316 of 1971.
(Appeal by Special Leave from the Judgment and Order dated the 17th September, 1971 of the Patna High Court in Criminal Revision No. 2488 of 1971) and Criminal Appeal No. 317 of 1971.
(Appeal by Special Leave from the Judgment and Order dated the 7th October, 1971 of the Patna High Court in Criminal Revision No. 1491 of 1971.) D. Goburdhan and D.P. Sharma for the appellants in both the appeals.
S.C. Agrawala and V.J. Francis for respondents in both the appeals.
The Judgment of the Court was delivered by SHINGHAL, J.
The point for consideration in these appeals by special leave is whether affidavits, sworn or affirmed before magistrates who are not in seisin of the case under section 145 of the Code of Criminal Procedure, hereinafter referred to as the Code, could be read in evi dence under that section ? The High Court has held such affidavits to be inadmissible in evidence, in its impugned judgments dated September 17, 1971 and October 7, 1971, and that is why the present appeals by special leave have arisen at the instance of the aggrieved parties.
It is not in controversy that in the absence of any specific provision to the contrary in the Code, the affida vits have to be Sworn or affirmed in accordance with the provisions of the Oaths Act, 1873.
It is also not in con troversy that the Oaths Act of 1969 has no application to the controversy.
Sub section (1) of section 145 of the Code provides, inter alia, that the Magistrate making an order under it shall require the parties concerned in the dispute to attend his court in person or by pleader and to put in such docu ments, or to adduce, "by putting in affidavits, the evidence of such persons" as they rely upon in support of their claims.
The affidavits contemplated by the sub section are therefore evidence for purposes of the proceedings before the Magistrate concerned even though the Evidence Act does not apply to them by virtue of the express provision of section 1 of that Act.
Chapter XLVI of the Code deals with miscellaneous mat ters including the affidavits referred to in sections 539, 539 A and 539 AA.
Section 539 deals with courts and persons before whom affidavits and affirmations to be used before any High Court or any officer of such Court may be sworn and affirmed.
Section 539 A relates to 176 affidavits in proof of conduct of public servants, while section 539 AA relates to the authorities before whom affi davits to be used under section 510A or 539 A may be sworn or affirmed.
An affidavit under section 145 is not however of a formal character because it is meant to prove or dis prove the competing claim of the parties as respects the fact of actual possession of the subject or dispute.
There is thus no provision in the Code specifying the courts or persons before whom the affidavits referred to in section 145 have to be sworn and affirmed.
This has therefore to be done according to the general provisions relating to affidavits.
The definition of "affidavit" in section 3(3) of the (Act X of 1897) only states that it shall include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing.
But it is an essential characteristic of an affidavit that it should be made on oath or affirmation before a person having authority to administer the oath or affirmation It is here that section 4 of the Oaths Act comes into operation which provides as follows: "4.
The following Courts and persons are authorised to administer by themselves or by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law : (a) all Courts and persons having by law or consent of parties authority to receive evidence;" Then follow clause (b) and a proviso, with which we are not concerned.
It is therefore clear that all courts and persons having by law or consent of parties authority to receive evidence are authorised to administer oaths and affirmations, but they can do so only where they are otherwise acting" in the discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law." So the court or person mentioned in clause (a) of section 4 of the Oaths Act can administer oath or affirmation to the deponent in an affidavit only if the, court or person in acting in the "discharge of the duties or in exercise of the powers im posed or conferred upon them respectively by law." In the present cases, the Magistrates concerned with the proceeding under section 145 of the Code were discharging the duties imposed and exercising the powers conferred by the Code, and they alone could administer the oaths and affirmations to the persons who made the affidavits, and not the magistrates who were not discharging any such duty or exercising any such power.
As the affidavits in the cases before us were admittedly not sworn or affirmed before Magistrates who were dealing with the disputes under section 145 of the Code, they were not proper affidavits and did not constitute evidence for purpose of section 145.
A similar view 177 has been taken in Nandial Ghost vs Emperor(1), Hemdan vs State Rajasthan and others(2), Govind vs State and oth ers(3), Krishna Chandra Naik vs Sk.
Makbul and others(4) Mahesh Thakur and others vs Lakshman Prasad Thakur and another(5) and State Madhya Pradesh vs Triveni Prasad(6) on which reliance has been placed by counsel for the respond ents.
We have gone through Ahmad Din vs Abdul Selem,(7) which has been cited with approval in Shambhu Nath Chopra vs State,(8) on which reliance. has been placed by counsel for the appellants.
We find however that in Ahmad Din 's case (supra) the Punjab High Court did not take proper notice of the requirement of section 4 of the Oaths Act that the courts and persons mentioned in clause (a) could administer oaths only "in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law.
" We have also examined the reasoning in Shambhu Nath Chopra 's case (supra), but the Delhi High Court there went wrong in holding that the evidence on affidavits referred to in section 145 of the Code was of a formal character within the meaning of section 510A so as to attract section 539 AA.
At the High Court has rightly held in the two impugned judgments that the affidavits were inadmissible in evidence as they were sworn before Magistrates who were never in seisin of the case, we find no force in these appeals and they are hereby dismissed.
P.H,P. Appeals dis missed.
(1) A.I.R. 1944 Cal.
(2) A.1.R. (3) A.I.R. 1969 All.
(4) A.I.R. 1970 Orissa 209.
(5) (1971) 19 Bihar, Law Journal 727.
(6) [1971] XVI M.P.L. J. 1059a (7) A.I.R. (8) A.I.R. 1970 Delhi 210. 13 1:158SCI/77 178 STATE OF KERALA vs M.T. JOSEPH November 25, 1976 [A. N. RAY, C.J., M.H. BEG AND JASWANT SINGH, JJ.] Kerala Land Reforms Act 1963 Kerala Government Land Assignment Act 1960 Sec.
8 Whether after a person ac quires title to Government land any further restrictions can be imposed.
The Government of Travancore sanctioned a scheme for the reclamation of the Vimbana Lake upon terms and conditions contained in at document dated 4 10 1963.
The document provided that one Joseph his father on payment of Rs. 10 '/ per acre which was to.
be recovered in 10 equal instalments would be given possession of certain tracts of land which they undertook to reclaim.
The said agreement was modified by an order dated 12 2 1941 and a fresh agreement was exe cuted in July 1941.
The said agreement provided that till tie remittances of all amounts due to the Government by way of land value are paid the executant shall have no right of alienation in respect of the property in question and that till then the property shall remain with the Government as sole owner.
It further provided that, until the entire land value is paid by the executant and until the assignment of the land and issue of Patta is completed, the executant undertook not to do any act which might reduce the value of tie property.
Joseph complied with the conditions laid down in the agreement and ;acquired full ownership rights by fulfilling the said terms.
In 1957, Joseph executed a deed of settlement of this land.
Thereafter Kerala Land Reforms Act of 1963 was passed so that the State Land Board started proceedings for the surrender of the land.
The question before the Land Board was whether the whole land should be treated as a single unit belonging to Joseph or whether it may be divided and treated as separate units of persons in whose favour Joseph made the settlement.
If the children of Joseph had acquired rights under the settlement each of them could be treated as entitled to compensation for a separate unit.
The State relied on section 8 of the Kerala Government Land Assignment Act 1960 which pro vides that all provisions, restrictions conditions and limitations contained ha any Patta or other document evi dencing an assignment of Government land shall be valid and take effect according to their tenure, any rule of law or usage to the contrary notwithstanding.
Dismissing the appeal, HELD: Tie terms in the 1941 agreement operated as a restraint upon the alientation of the rights only so long as all the amounts due to the Government by way of land revenue were not paid up.
Since, in the present case the entire amount had been paid by 10 yearly instalments before the year 1957 and since the Government had effected the mutation in its record acting upon the settlement of 1957 in favour of the children of Joseph, it could not be said that there was any patta or other documents containing any condition to which section 8 of the Act applied.
The chil dren derived rights under the deed of settlement and there fore, each of them is entitled to compensation for a sepa rate unit.
[180 C E] CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
587 696 & 598 600 of 1976.
(Appeals by Special Leave from the Judgment and order dated 13th of July 1975 of the Kerala High Court in CRP Nos. 1188, 1227, 1250, 1272.
1278, 1279.
, 1284 1287, 1309, 1312 and 1386/73).
179 M.M. Abdul Khader, Adv.
and K.M.K. Nair, for the Appellants.
T.S. Krishnamoorthy Iyer and P.K. Pillai, for RR.
ex cepting R. 8 in CA 587/76.
The Judgment of the Court was delivered by BEG, J.
These appeals by special leave raise the ques tion whether the Kerala High Court had correctly interpreted and applied Section 8 of the Kerala Govt.
Land AsSignment Act, 1960 (hereinafter referred to as 'the Act ') to the cases before us.
This provision reads as follows: "8.
All provisions, restrictions, conditions and limitations over, contained in any Patta or other document evidencing an assignment of Government land shah be valid and take effect according to their tenor, any rule of law of usage to the contrary notwithstanding".
The facts upon which the provision was sought to be applied are these: On 23 October, 1939, the Government of Travancore sanctioned a. scheme for the reclamation of the Vimbang Lake upon terms and conditions which were set forth in a document dated 4 October, 1939.
The agreement provided that one M. T. Joseph and his father, on payment of Rs. 10/ per acre, which were to be recovered in ten equal instal ments, would be given possession of certain tracts of land which they undertook to reclaim.
For the first two years after what is called the "Registry" of the names of the two lessees no tax was to be levied.
The "Registry" was liable to be cancelled if adequate progress was not made within these two years.
It appears that the agreement was modified by an order dated 12 February, 1941 and a fresh agreement was executed in July 1941 by M.T. Joseph (now dead) who entered into possession of Keyal land, constructed the ring bunds at considerable expense, and brought the very large tracts of and to be reclaimed under paddy cultivation.
In June 1957, M.T. Joseph executed a deed of settlement of all this land, after he had acquired full ownership rights by fulfilling the terms of the agreement.
The Act which is sought to be now applied was then passed.
After that, the Kerala Land Reforms Act of 1963.
was passed so that the, "State Land Board" started proceedings for the surrender of these lands in accordance with the provisions of the Land Reforms Act.
The only question now before us is whether, by an appli cation of section 8 of the Act, the whole land is to be treated as a single unit belonging to M.T. Joseph (since dead), on the dispositions made by M.T. Joseph, under the deed of settlement executed by him on 15th June, 1957, distributing the land among his children, resulted in sepa rate units for the purposes of compensation for the land surrendered.
If the children had acquired right under the deed of settlement each of them could be treated as entitled to compensation for a separate unit.
If the deed was of no effect, the mere fact that the children were in possession, under an authority from their father could not change the ' ownership of the land in the constructive possession of the father.
We have been taken through the deed of agreement of July, 1941, with the Government.
which contains the follow ing term, the effect of which has to be determined: 180 "Till the remittance of all amount due to.
the Government by way tharavila (land value) etc.
the executant shall have no right of alienation in respect of the schedule property and the property shall remain with the Government as sole owner.
The executant shall remit the tax at the thirteenth thoram in the village office every year after the first two years of registry so long as no default is made in the payment of instalment and obtain receipt therefor.
Until the entire tharavila (land value under this agreement as stated above is paid by the executant and until the assignment of the land and issue of patta is completed the executant undertakes not to do any act which may reduce the value of the property and if as stated above due to any reason the property is recovered.
from the executant he shall not put forward any claim for improvements etc.
and the property shall be surrendered to Government".
It is clear to us that this term in the agreement oper ated as a restraint upon the alienation of rights only so.
long as.
all the amounts due to the Government as Tharavila had not been paid up.
The whole amount had to be paid up in ten yearly instalments.
It has been paid up before 1957.
Furthermore, as the Kerala High Court found, the settlement of land on 15th June, 1957 had not merely been given effect to by a mutation in the relevant Government records but pattas had actually been given by the Government, acting upon the settlement of 1957, in favour of the children of M.T. Joseph.
Hence, it could not be said that there was any patta of other document containing any condition to which Section 8 of the Act could apply.
We find, from the Judgment under appeal, that several questions, which have no real bearing on the rights of the parties, were: also. argued.
One of these questions was whether land could be acquired by adverse possession by the alienees of the allottees of the. land from the Government under the scheme for its reclama tion.
We fail to see how a question of adverse possession arises here when the Government itself recognises the rights of the children of M.T. Joseph in the pattas executed by it in their favour.
The High Court recorded the following findings about the Government acting on the terms of the settlement of 15th June, 1957, the correctness of which had not been challenged before us: "This settlement deed has been recognised by the Government mutation has been effected in the names of the children and pattas have also. been issued to them.
It has been further stated on behalf of the revision petitioners (the heirs of the said Joseph and those who took under the settlement deed dated 15.6.1957) that levy under the Kerala Rice and Paddy (Procurement by Levy) Order, 1966, has been collected from each of the shares under the deed of 1957, that land tax has been imposed on each of the shares sepa rately and agricultural income tax collected on the income of the properties of each of the sharers".
We do not think it is necessary to go into any other question.
The High Court was of opinion that some facts had still to be as 181 certained when the case goes back to the Land Board for proceeding on the footing determined by the High Court.
We think that we should make it clear that matters to.
be still determined could not, in view of our finding, involve deter mination of any question of adverse possession of the claimants, the children of M.T. Joseph.
For the reasons given above, we dismiss these appeals.
We make no order as to costs.
P.H.P, Appeals dis missed.
[/INST]In the Rajasthan Legislative Assembly elections held in March,1972, the respondent defeated the appellant by a margin of over 22000 votes.
The appellant filed an elec tion petition in the Rajasthan High Court challenging the election of the respondent alleging that the respondent and his election agent committed the following corrupt prac tices.
(1) A pamphlet containing defamatory and false statements touching the personal character of the appellant was distributed by the respondent and his election agent in a meeting on 23 2 72 at Nehru Park.
(2) Several copies of a Weekly newspaper called Patal Shakti dated 27 2 1972 containing a scurrilous editorial were distributed by the respondent and his election agent at a meeting of the Socialist Party held at Public Park on 27 2 1972.
The High Court dismissed the election petition filed by the appellant.
The High Court discarded the evidence of the appellant 's witnesses on the ground that they were interest ed witnesses.
This Court by consent of parties remitted the following two additional issue to the High Court with liberty to the parties to lead evidence on those issues.
(1) Whether the pamphlet was printed at the instance and with the consent of the respondent and whether the payment for that pamphlet was made by his election agent ? (3) Whether the editorial in Patal Shakti was read over in the meeting of 27 2 1972 by Vijay Kumar Talwar in the presence of the respondent.
The High Court after remand held in favour of the respondent on both the issues.
Dismissing the appeal under section 116A of the Repre sentation of the People Act, 1951, HELD: 1.
It is matter of common occurrence in election petitions that parties manage to collect a large volume of oral evidence in support of allegations of corrupt practice.
Very often, the allegations are connected and are attempted to be established with the evidence of partisan witnesses, On rare occasions when the allegations are true, untrue evidence is led to strengthen the charges.
[4D E] 2.
The High Court should not have brushed aside the evidence of the appellant 's witnesses merely on the ground.
that they belong.to the, same party as the appellant or that they were otherwise interested in his success in the 2 1458SCI/76 2 election.
Interested witnesses are not necessarily false witnesses though the fact that the witness has a personal interest or stake in the matter must put the court on its guard.
The evidence of such witnesses must be subjected to a closer scrutiny and the Court may in a given case be justified in rejecting that evidence unless it is corrobo rated from an independent source.
The reasons for corrobo ration must arise out of the context and the texture of evidence.
Even interested witnesses may be interested in telling the truth to the Court and, therefore, the Court must assess the testimony of each important witness and indicate its reasons for accepting or rejecting it.
A broad and general comment that a particular witness is an election agent of a candidate cannot therefore be relied on is not a judicial assessment of evidence.
Evidence can be assessed only after a careful analysis.
[4F H] 3.
Since the High Court rejected the evidence of the appellant on the omnibus ground that the witnesses were interested, this Court went through the relevant evidence and on a consideration of that evidence came to conclusion that it is impossible to accept the allegations of corrupt practice made against the respondent.
[5A B] 4.
The allegations that the respondent and his agent distributed the pamphlet in the meeting held at the Nehru Park was disbelieved by this Court on the following grounds: (a) The meeting was addressed by the Prime Minister and over a lakh of people were present.
It is fantastic to think that in a meeting called by the rival party which was so largely attended the respondent and his election agent would be so foolish as to distribute a scandalous pamphlet.
(b) None of the recipients of the highly defamatory document took any action after receiving it.
(c) It is impossible to accept the allegation of the appellant that the pamphlets were distributed to the Additional District Magistrate and the Circle Officers who were present at that meeting in their official capacity.
(d) Neither the Additional District Magistrate nor the Circle Officer produced a copy of the pamphlet nor did they take any action on the pamphlet.
(e) The election agent of the respondent is an advocate and the respondent had won 3 consecutive assembly elections by a good margin.
It is impossible that these two old hands would so openly and incontrovertibly lend an easy ground for the success of a possible election petition.
(f) Although the matter was remanded no proper evidence was led by the appellant.
The appellant tried to lead evidence on facts which even if proved would not decide the issue in his favour.
[5B H, 6A C] 5.
The Court negatived the appellant 's contention that the editorial was published with the consent of the respond ent or his agent for the following reasons: (a) Gyan Devi Talwar the mother of Vijay Kumar Talwar is styled as the Director of Patal Shakti.
Raj Kumar Sethi is said to be the Chief Editor of the weekly while Vijay Kumar Talwar is an Assistant Editor.
The proceedings of the meetings of the Congress workers of 18 2 1972 show that the said meeting which was called by the party to which the appellant belonged was attended amongst others by Gyan Devi Talwar, Rat Kumar Sethi, Madan Lal Kanda, Chandram Sherpal one of the Assistant Editors of Patal Shakti.
The said meeting resolved unanimously to support the candidature of the appellant.
3 (b) Gyan Devi Talwar had called a meeting of the Trade Union workers to support the appellant 's candidature.
(c) Seeing that persons closely connected with the Journal had taken a prominent part in the appellant 's election campaign, it is absurd to think that these very persons would be parties to the publication of the editorial.
(d) The receipt of Rs. 2000/ alleged to have been paid by the respondent for publication of the editorial is uninspiring.
(e) Raj Kumar Sethi has perjured himself on several important points.
(f) The letter of the appellant alleged to have been addressed to the editor and the reply of the editor are got up documents prepared for supporting the appellant 's case that the editorial was published at the instance of the respondent.
(g) Raj Kumar Sethi was pliable and could for consideration be made to say different things at different times.
(h) The evidence of the appellant suffers from serious infirmities.
(i) The evidence of the other witnesses only shows that several witnesses conspired to create false evidence.
[6E H, 7A H, 8A H, 9A C]
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